Datasets:

d0r1h

/

ILC

like 0

The petitioner cannot claim an appointment on compassionate grounds as a matter of right: Allahabad High Court

The family of the petitioners has survived for more than 15 years without such an appointment. The mother of the petitioner was entitled to claim the compassionate appointment which she did not pursue, and surrendered her claim after nine years of submission of her application with a request for the appointment of her son in her place. If such a practice is permitted, that would frustrate the object of the Scheme of compassionate appointment which is to provide immediate succor to the bereaved family and to help out the family from the rigors of financial hardship being faced by the family due to the death of sole bread earner of the family and also against the settled norms prescribed for grant of compassionate appointment. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Saral Srivastava in the matter of Sachin Yadav vs State Of U.P. & ors [WRIT – A No. – 5064 of 2021] The facts of the matter were that the deceased was the Assistant Teacher in Primary School Jagra, Block Nidhauli Kala, District Etah, who unfortunately died on 16.3.2006. After his death on 03.01.2011, the petitioner’s mother applied for a compassionate appointment. The application was processed but as such application was not submitted in the prescribed format, the petitioner’s mother was requested to submit it in the prescribed format. Upon such application, the application was forwarded to the state government as the prescribed limitation period was over, but no decision was taken on such application. On 04.03.2021 she withdrew her application and requested the appointment of her son Sachin Yadav in her place. The Hon’ble High Court observed that the object of compassionate appointment is to provide immediate relief to the bereaved family so that the bereaved family may get over the financial hardship suffered by them on account of the untimely death of the sole bread earner of the family. Additionally, the Hon’ble High Court stated that “It is settled in law that the compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment.” Furthermore, the Hon’ble High Court observed that the petitioner cannot claim an appointment on compassionate grounds as a matter of right, and it can be given to the petitioner if he fulfills the norms prescribed for the grant of compassionate appointment. Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the matter were that the deceased was the Assistant Teacher in Primary School Jagra, Block Nidhauli Kala, District Etah, who unfortunately died on 16.3.2006. After his death on 03.01.2011, the petitioner’s mother applied for a compassionate appointment. The application was processed but as such application was not submitted in the prescribed format, the petitioner’s mother was requested to submit it in the prescribed format. Upon such application, the application was forwarded to the state government as the prescribed limitation period was over, but no decision was taken on such application. On 04.03.2021 she withdrew her application and requested the appointment of her son Sachin Yadav in her place. The Hon’ble High Court observed that the object of compassionate appointment is to provide immediate relief to the bereaved family so that the bereaved family may get over the financial hardship suffered by them on account of the untimely death of the sole bread earner of the family. Additionally, the Hon’ble High Court stated that “It is settled in law that the compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment.” Furthermore, the Hon’ble High Court observed that the petitioner cannot claim an appointment on compassionate grounds as a matter of right, and it can be given to the petitioner if he fulfills the norms prescribed for the grant of compassionate appointment. Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that the object of compassionate appointment is to provide immediate relief to the bereaved family so that the bereaved family may get over the financial hardship suffered by them on account of the untimely death of the sole bread earner of the family. Additionally, the Hon’ble High Court stated that “It is settled in law that the compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment.” Furthermore, the Hon’ble High Court observed that the petitioner cannot claim an appointment on compassionate grounds as a matter of right, and it can be given to the petitioner if he fulfills the norms prescribed for the grant of compassionate appointment. Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble High Court observed that the petitioner cannot claim an appointment on compassionate grounds as a matter of right, and it can be given to the petitioner if he fulfills the norms prescribed for the grant of compassionate appointment. Finally, the Hon’ble High Court dismissed the appeal.

RESERVED ON 26.07.2021 DELIVERED ON: 21.10.2021 Case : WRIT A No. 50621 Petitioner : Sachin Yadav Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Kailash Singh Kushwaha Sanjay Kumar Singh Counsel for Respondent : C.S.C. Sanjay Kumar Srivastava Hon ble Saral Srivastava J Heard Sri Kailash Singh Kushwaha learned counsel for the petitioner learned Standing Counsel appearing for the State respondent no.1 and Sri Sanjay Kumar Srivastava learned counsel appearing for respondents no.2 3 The petitioner through this writ petition has prayed for the following i) Issue a writ order or direction in the nature of Mandamus commanding the respondent no.3 to provide compassionate appointment to the petitioner without any further delay ii) Issue a writ order or direction in the nature of Mandamus commanding the respondent no.2 either to take appropriate and necessary decision on the reference made by respondent no.3 by letter dated 27.12.2011 followed by reminder dated 30.04.2013 and 04.03.2021 for providing compassionate appointment or to refer the matter to the State Government f through proper channel forthwith iii) Issue any other writ order or direction as this Hon’ble Court may deem fit and proper under the facts and circumstances of the present case iv) Award the costs of the petition in favour of the petitioner.“ The case of the petitioner is that the father of the petitioner Late Satya Pal Singh was an Assistant Teacher in Primary School Jagra Block Nidhauli Kala District Etah who unfortunately died on 16.3.2006. After his death the mother of the petitioner applied for compassionate appointment on 3.1.2011. The application of the mother of the petitioner was processed she was asked to submit an application in the prescribed format. Thereafter respondent no.4 forwarded the application of the mother of the petitioner along with its recommendation for compassionate appointment to respondent no.3 on 27.12.2011. Since the mother of the petitioner applied after five years from the date of death of his father therefore the respondent no.3 referred the application of the mother of the petitioner vide letter dated 27.12.2011 to respondent no.2 for grant of relaxation in time for the delay in submitting the application It appears that no decision was taken on the application of the mother of the petitioner for the compassionate appointment It further transpires from the record that when no decision was taken on the application of the mother of the petitioner she withdrew her application and requested the appointment of her son Sachin Yadav in her place. The District Basic Education Officer Etah vide letter dated 4.3.2021 forwarded the application of the petitioner for compassionate appointment to the Secretary U.P. Basic Shiksha Parishad Prayagraj for grant of relaxation in time as the petitioner has submitted the application after five years from the date of death of his father. In the aforesaid backdrop the petitioner has prayed for the relief extracted above Learned counsel for the petitioner submitted that Para 8 of the Government Order dated 4.9.2000 provides for seeking necessary approval of the State Government where the application for the compassionate appointment has been submitted after five years from the date of death of the deceased employee and the State Government is under obligation to consider the application of the petitioner for grant of relaxation for the delay in submitting the said application. Accordingly he submits that the action of the respondents in not considering the application of the petitioner is illegal He further contends that whatever delay has occurred the same has occurred on account of inaction on the part of the respondents in not considering the application of compassionate appointment of his mother in time therefore the petitioner is entitled to relaxation in limitation for grant of appointment on compassionate ground In support of the contention he has placed reliance upon two judgments of this Court in the cases of Madhav Prasad Shakya Vs. State of U.P. and others reported in 2018(11) ADJ 198 and Vishal Saini Vs. State of U.P. and others reported in 2021ADJ 74Rules 1984the minimum age for recruitment on Class III Posts is 18 years. The petitioner did not submit any application as soon as he became eligible for consideration for appointment on the compassionate ground rather he applied after six years after he became eligible for appointment on compassionate ground The father of the petitioner had died in the year 2006 and the mother of the petitioner withdrew her application after 13 years and requested for grant of compassionate appointment to her son. At this stage it is worth noticing that the object of compassionate appointment is to provide immediate relief to the bereaved family so that the bereaved family may get over the financial hardship suffered by them on account of the untimely death of the sole bread earner of the family. It is settled in law that the compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment Thus the petitioner cannot claim an appointment on compassionate grounds as a matter of right and it can be given to the petitioner if he fulfills the norms prescribed for the grant of compassionate appointment. In the case in hand the mother of the petitioner applied for the compassionate appointment in the proper format in December 2011. Since the application was submitted beyond the period of limitation i.e. five years prescribed for submitting the application for compassionate appointment therefore the matter was referred to the State Government but the State Government did not take any decision on the application of the mother of the petitioner. His mother also did not pursue her claim and after about 13 years from the date of death of petitioner s father she withdrew her application and requested for the appointment of her son in her place on compassionate ground. The petitioner thereafter submitted an application on 4.11.2019 The family of the petitioner survived for more than 15 years. The mother of the petitioner was entitled to claim the compassionate appointment which she did not pursue and surrendered her claim after nine years of submission of her application with a request for the appointment of her son in her place. Under the Scheme for compassionate appointment under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 the Rule does not envisage any such contingency where the widow of the deceased employee submitted an application for consideration of appointment on compassionate ground and thereafter she sat idle and did not take any legal recourse to assert her claim for appointment on compassionate ground rather she waited for her son to become eligible for compassionate appointment thereafter she withdrew her application and requested for the appointment of her son in her place. If such a practice is permitted that would frustrate the object of the Scheme of compassionate appointment which is to provide immediate succor to the bereaved family and to help out the family from the rigors of financial hardship being faced by the family due to the death of sole bread earner of the family and also against the settled norms prescribed for grant of compassionate appointment. Since the family has survived for about 15 years therefore this Court believes that the relief claimed by the petitioner cannot be granted This view is supported by the judgment of the Apex Court in Civil Appeal No. 8921 Central Coalfields Limited through its Chairman and Managing Director & Ors. Vs. Smt. Parden Oreon decided on 9th April 2021 wherein the Apex Court refused to grant the compassionate appointment to the son of the respondent who submitted the application for the compassionate appointment more than ten years after the respondent s husband has gone missing. Paragraph 9 of the judgment is reproduced “9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondent’s son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition merely because the respondent is working her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However the Respondent’s husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records are also shown as dependents of the Respondent. It cannot be said that there there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable we are convinced that the Respondent’s son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.” It is true that the Rule 1974 provides that if the application for compassionate appointment is submitted after five years the competent authority is obliged to forward it to the State Government to consider the claim of compassionate appointment who is under obligation to consider the same but the application has to be submitted within a reasonable time after the expiry of the period prescribed for submitting such application specifying the reasons for the delay in submitting the application. If the state government in a given case is satisfied that the delay in filing the application is bonafide it may consider the application and accord consideration for compassionate appointment subject to fulfillment of other eligibility criteria prescribed for compassionate appointment. The said provision does not confer an indefeasible right upon the aspirant of the compassionate appointment for consideration of his application even though it has been submitted with inordinate delay without any proper and bonafide explanation for the delay in submitting the said application In the instant case no such condition exists inasmuch as the petitioner has not explained the reason for the delay in submitting the application rather the facts stated above reveals that the mother of the petitioner was dormant in pursuing her claim. Thus the argument of the petitioner s counsel that once the application for compassionate appointment is submitted after the period prescribed for submitting the application the competent authority is bound to forward the same to the state government who is under obligation to consider the same is misconceived and not sustainable. In the opinion of the Court Judgments relied upon by the counsel for the petitioner are not applicable in the present case. In the case of Madhav Prasad Shakya the petitioner submitted a representation immediately after attaining the age of majority which application was rejected by the State Government on the ground that the application has been filed after the expiry of five years. In that circumstances the Court held that the application has wrongly been rejected. The factual situation in the case of Madhav Prasad Shakyain which this Court allowed the writ petition is different from the facts of the present case hence the law enunciated in the said judgment is not attracted in the present case In the case of Vishal Sainiit has been held that at the time of death of petitioner s father he was minor. The mother of the petitioner was given the compassionate appointment who also died on 31.1.2012 during the service period. At the time of death of his mother the petitioner was minor and as soon as he became major he submitted an application for appointment on compassionate ground on 11.10.2019 which was rejected by the authority concerned on the ground of limitation. In such a factual backdrop the Court held that the claim of the petitioner has wrongly been rejected on the ground of limitation. The facts of the present case are not akin to the facts of the case of Vishal Sainitherefore the judgement of Vishal Sainidoes not help the cause of the petitioner Thus for the reasons given above the writ petition lacks merit and is accordingly dismissed. However there shall be no order as to costs Order Date : 21.10.2021

The petitioner repeatedly filing representation is not valid grounds for extension in time to file writ petition after unreasonable delay: High Court of Delhi

Rights cannot be enforced after an unreasonably long delay has taken place and merely having filed repeated representation would not serve as grounds to extend the time period to file the writ petition, this was held by a two member bench of the High Court of Delhi consisting of Justice Manmohan and Justice Navin Chawla in the case of Mrs Birmati v Union of India & Another [W.P.(C) 8457/2021 & CM Appl. 26191/2021] on 16th August 2021. The petitioner, Mrs Birmati is the widow of the late Ct Dvr Jagbir Singh who was a constable in the CRPF. However prior to his death, the petitioner’s husband had been declared a deserter by the CRPF in July 1993 and subsequently dismissed from service in absentia. Following the petitioner’s husband’s death, the petitioner sent a request to respondents to grant her compassionate allowances and also filed a writ petition seeking family pension. On the 5th of October 2015, the aforesaid writ petition was dismissed as withdrawn with liberty to the petitioner to approach the residents with a representation for compassionate allowance or pension. The petitioner’s main contentions were that she suffered from deteriorating health conditions and desperately needed the money which ought to be granted to her considering how long her husband served the CRPF before being declared a deserter. The counsel representing the respondents cited the case of Chairman/Managing Director, U.P. Power Corporation Ltd. & Ors. v Ram Gopal [2020 SCC OnLine SC], where the Supreme Court of India stated that delay defeats equity and law would favour the vigilant instead of the indolent. It was added that even in cases where limitation did not legally apply, rights cannot be enforced after an unreasonable amount of time had already lapsed. Additionally it was pointed out by the respondents counsel that no medical documents had been submitted or placed on record which indicated that the petitioner was suffering from prolonged illness or deteriorating health and that most importantly the petitioner’s husband had been a deserter and absent from service since 1993. In the light of these submissions, the respondents submitted that the petitioner was not entitled to any form of pension or allowance.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 8457 2021 & CM APPL. 26191 2021 MRS BIRMATI WD OF LATE CT DVR JAGBIR SINGH Petitioner Through: Mr. Rajesh Nandal Advocate. UNION OF INDIA & ANR. Through: Mr. Shashank Bajpai with Respondents Mrs. Shakun Sudha Shukla and Mr. Dhananjay Tewari Advocates for Date of Decision: 16th August 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J JUDGMENT The petition has been heard by way of video conferencing. Present writ petition has been filed seeking directions to the respondents to grant family pension to the petitioner from the date of declaration of deceased husband as deserter from CRPF and grant all associated financial and other benefits including an interest at the rate of 10% on the arrears as due. W.P.(C) 8457 2021 3. Learned counsel for the Petitioner states that the Petitioner’s husband was a constable in the CRPF who was declared deserter by the CRPF and consequent thereto he was dismissed from service in absentia. He points out that after the Petitioner’s husband’s death the Petitioner sent a request to the respondents for grant of compassionate allowances and subsequently filed writ petition for the same i.e. W.P. No. 9400 2015 before this court seeking grant of family pension. However he points out that vide order October 2015 the said writ petition was dismissed as withdrawn with liberty to the petitioner to approach the respondents with a representation for compassionate allowance or pension. He states that since the representations dated 20 th October 2015 and 16th January 2016 were to no avail the Petitioner preferred W.P. 13928 2019 which was subsequently withdrawn on 24th December 2019 with liberty to file a proper petition explaining the delay in approaching the court for relief. He emphasises that the delay occurred due to the Petitioner’s poor financial condition and deteriorating health. 6. We have heard learned counsel for the parties and also gone through the documents placed on record. Along with present writ petition no medical documents have been annexed in order to show that the petitioner was either suffering from prolonged illness or she has a deteriorating health. In fact Petitioner’s husband was declared a deserter by the CRPF and dismissed from service in absentia as far back as in July 1993. The Supreme Court in the case of Chairman Managing Director U.P. Power Corporation Ltd. & Ors. vs. Ram Gopal 2020 SCC OnLine SC 101 has held that delay defeats equity and law favours the vigilant and not W.P.(C) 8457 2021 the indolent. The relevant portion of the said judgment is reproduced hereinbelow: “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 at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.” W.P.(C) 8457 2021 9. It has also been repeatedly held by the Supreme Court that repeated representations by the petitioner would not extend the time period to file the writ petition. Consequently this Court is of the view that the petitioner after a lapse of nearly twenty eight years of dismissal of service of her deceased husband cannot ask for family pension and other benefits along with interest. Accordingly the present writ petition along with pending application is dismissed on the ground of laches. 10. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J AUGUST 16 2021 NAVIN CHAWLA J W.P.(C) 8457 2021

Court grants permission to withdraw IPR matter, in pursuance of settlement between the parties: Delhi High Court

Delhi High Court in the recent matter grants the permission to withdraw IPR matter, by the virtue of settlement between the parties. The above was observed in the recent matter of Amit Talwar & Ors. v. Vivek Talwar [CS (COMM) 330/2019]. The proceeding of the said case was presided by a single judge bench, consisting of Justice Suresh Kumar Kait on September 8th, 2021. The facts of the above case are as follows. Plaintiff, along with his father Sh. Charanjit Talwar and Ram Gopal Khanna started business for manufacturing and trading in sanitary goods and fittings selling and built-up a partnership firm namely “Parkash Brassware Industries” and they started using a unique word PARKO for label/packaging of their goods. After the demise of parents of Plaintiff in 1997, he became the sole proprietor of the Prakash Brassware Industries and has individually applied for registration of the trademark PARKO including trademarks PARKO & PARKOVIC. Since 1986, he claimed to be the only owner of copyrights of the original artistic work of logos. The counsel on the behalf of the plaintiffs also submitted that Plaintiff no. 3 was allowed to use the logo, as it had been authorized to the said plaintiff. It was further contended that plaintiff No.2 entered into a Family Settlement with his sons and wife in which it was mutually decided that defendant will resign from the Directorship of plaintiff No.3. Plaintiff No.2 and defendant entered into an Agreement wherein plaintiff No.2 was declared as the first and prior adopter of the trademark PARKO for bathroom fitting and cognate and allied goods. The proprietorship of the plaintiff No.2 on the trademark PARKO was duly acknowledged and it was also agreed that defendant shall not use the trademark PARKO but he will be allowed to use the word PARKO in conjunction with VIC i.e. PARKVIC or any other word. However, despite the agreement, defendants applied for identical trade mark in the year 2010 and further disputes arose between the parties. In furtherance to the above, the matter was then referred to mediation & conciliation. But the said mediation failed. The matter was then adjudicated to the court in lieu of a settlement application filed wherein defendant shall be using PARKOVIC which shall not be subjected to any IPR inflictions of plaintiffs.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09.09.2021 CS(COMM) 330 2019 AMIT TALWAR AND ORS. ..... Plaintiffs Through: Mrs.Bindra Rana Ms.Priya Adlakha Ms.Tanvi Bhatnagar Advs. VIVEK TALWAR AND ORS. ..... Defendants Through: Mr.Mayank Rustagi Adv. for Defendant Nos.1 & 2. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. I.A. 11483 2021In a suit for permanent injunction restraining the defendants from infringing the registered trademark copyright PARKO on packaging label of goods passing off damages and unfair trade practice the present application has been jointly filed by plaintiffs as well as defendant no.1 for issuance of decree in terms of Para no. 6 of the application as settlement has been arrived at between the parties. Plaintiffs have also prayed for withdrawal of the present suit against defendant nos.2 to 10. They have CS(COMM) 330 2019 further prayed that goods seized by the Local Commissioner at the premises of M S Malik Traders 1553 Gurudwara Road Kotla Mubarakpur New Delhi and handed over to Mr. Amar Nath Chug on superdari be released. As per the plaintiffs plaintiff no.1 along with his father Sh. Charanjit Talwar and Ram Gopal Khanna started business for manufacturing and trading in sanitary goods and fittings selling and built up a partnership firm namely "Parkash Brassware Industries" and they started using a unique word PARKO for label packaging of their goods. After the demise of parents of Plaintiff no.2 in 1997 he became the sole proprietor of the Prakash Brassware Industries and has individually applied for registration of the trademark PARKO including trademarks PARKO & PARKOVIC. From 1986 onwards he is the only owner of the copyright in the original artistic work of logos and PARKO. It is further stated that the plaintiff No.3 has also been authorised by plaintiff No.2 to use the trademark PARKO. On 02.04.2010 plaintiff No.2 entered into a Family Settlement with his sons and wife in which it was mutually decided that defendant No.l will resign from the Directorship of plaintiff No.3. Plaintiff No.2 and defendant No.l entered into an Agreement CS(COMM) 330 2019 on 03.07.2010 wherein plaintiff No.2 is the first and prior adopter of the trademark PARKO for bathroom fitting and cognate and allied goods. The proprietorship of the plaintiff No.2 on the trademark PARKO was duly acknowledged and it was also agreed that defendant No.l will not use the trademark PARKO but he will be allowed to use the word PARKO in conjunction with VIC i.e. PARKVIC or any other word. However despite signing the agreement dated 03.07.2010 defendants applied for identical trade mark in the year 2010 and further disputes arose between the parties. Vide order dated 12.07.2019 matter was referred to Delhi High Court Mediation & Conciliation Centre for exploring possibility of settlement however mediation failed. Today learned counsel for both the parties submit that plaintiff no.1 and 2 and defendant no.1 i.e. Shri Vivek Talwar belong to the same family and they have agreed to amicably settle and compromise the present suit in accordance with the terms as stated in Paragraph no. 6 of the present application as well as in an additional clause mentioned in an email which is annexed along with the application. Contents of additional clause are incorporated in Paragraph no. 6 as Sub Para V and the same read as under: 6. V. That the Defendant No. 1 by himself his partners officers employees servants agents representatives CS(COMM) 330 2019 dealers stockiest distributors retailers successors or any one claiming under him directly or indirectly shall be allowed to use the trademark PARKOVIC only in straight font as agreed in the trade mark Agreement in terms of CS(Comm.) 330 2019 by the Hon’ble Delhi High Court and the Plaintiffs shall have no objection whatsoever to such user." the order dated 26.08.2019 passed Learned counsel for the parties also undertake to abide by the terms of the settlement as narrated in the present application as well as in the additional clause. Learned counsel for plaintiffs pray that the present suit be decreed in aforesaid terms qua defendant no.1 and seeks permission of this Court to withdraw the present suit qua defendant nos.2 to 10. Accordingly the present joint application filed by the parties is allowed. The suit is decreed in favour of the plaintiffs and against defendant no.1 in terms mentioned in Paragraph No.6 of this application along with newly incorporated sub para 6 which shall form part of decree sheet. Decree sheet be accordingly drawn. CS(COMM) 330 2019 In view of order passed in I.A. 11483 2021the present suit is decreed qua defendant no.1 in view of the terms mentioned in Paragraph No.6 of this application along with newly CS(COMM) 330 2019 incorporated sub para 6which shall form part of decree sheet. Decree Counsel for the plaintiffs seeks permission to withdraw the present sheet be accordingly drawn. suit qua defendant nos.2 to 10. 10. Permission is granted. SEPTEMBER 09 2021 ab 11. Pending application if any stands disposed of as infructuous. SURESH KUMAR KAIT) CS(COMM) 330 2019

Affidavit filed by the advocate’s clerk will not be accepted: High Court of Orissa

Affidavit refers to a written document from a person regarding the facts of the case which he swears it true. The affidavit along with witness statements are used to ascertain the truth in most cases. This document is ideally signed by the petitioner himself and allowing an outsider like the advocate’s clerk to sign the affidavit is not acceptable. This was addressed in the case of Thabir Sagar v State of Odisha [BLAPL No. 748 of 2021] by single-member bench of the High Court of Orissa consisting of Justice S. K. Panigrahi on the 18th of June 2021. The petitioner, Thabir Sagar has been accused of dacoity which is punishable under Section 395 of the Indian Penal Code. The Additional Sessions Judge, Koratpur rejected his past bail application on grounds that suspicious money was retrieved from him and some of the co-accused was still absconding. For these reasons the Additional Sessions Judge felt granting bail to the petitioner would hamper the course of the trial. The present petition was filed by Thabir Sagar to set aside the Additional Sessions Judge’s decision and request the High Court to grant him bail. The affidavit accompanying the present petition has been filed by a man named Tophan Pradhan who is the advocate’s clerk. The court did not appreciate the excuse that Mr Pradhan was supposedly looking after the case and stated that it was gross violation of the Orissa High Court rules. The Court also pointed out that the affidavit was to be signed only by someone who has full complete first-hand knowledge of the case and that the clerk signing the affidavit instead of the petitioner was impermissible.

Thabir Sagar vs State Of Odisha on 18 June 2021 Orissa High Court Thabir Sagar vs State Of Odisha on 18 June 2021 HIGH COURT OF ORISSA CUTTACK BLAPL No.7421 it is in flagrant violation of rule of law to execute an affidavit without having any knowledge of the averments made therein. Courts rely heavily on affidavits and their ensuing probative value for the smooth administration of justice. Noting the importance of an Affidavit courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge 6. Recently it is noticed that there has been a growing trend of advocates clerks signing affidavit for applications petitions counter affidavits etc. imperviously and oblivious of the contents therein. A Vakalatnama to represent a party in Court is held by an Advocate and the brief is entrusted to the Advocate. The Advocate client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate s clerk signing an affidavit instead of the party 4 himself or a person designated authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible. An advocate s clerk as defined in The Orissa Advocates Clerks Welfare Fund Act 2008 is as under 2 b) "Advocates clerk" means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates Clerks Association An advocate s clerk no doubt renders invaluable assistance in the advocate s office in various day to day matters including filing effecting service coordination etc. Nothing entitles or enables an advocate s clerk to appear before a Court on behalf of an advocate. Similarly an advocate s clerk cannot swear affidavits in a perfunctory manner for petitions applications on behalf of a party before the court especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 The Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate s clerk has falsely signed an affidavit. The most recent instance of the same being the order passed by a coordinate bench of this Court wherein a show cause contempt notice was served on 5 an advocate s clerk who had sworn an affidavit in a bail application of an accused on the basis of forged medical certificates 7. The relevance of Affidavit is ingrained in both the procedural codes in India. The word "Affidavit has its roots from a Latin word which literally means to "pledge one s faith." It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms Civil Procedure Code 1908 Order XIX Affidavits 3. Matters to which affidavits shall be confined. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements of his belief may be admitted Provided that the grounds thereof are stated.The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter or copies of or extracts from document shallbe paid by the party filing the same Similarly the Orissa High Court Rules Chapter VI General Rules regarding Applications and Affidavits provides as follows 4. Every petition and every affidavit shall be entitled "In High Court of Orissa" and i) neatly typed on foolscap thick white paper with a margin of five centimetres and shall contain approximately twenty four lines in each full page and only one side of the paper shall be used ii) couched in proper language and 6 iii) signed and dated either by the petitioner or declarant or his advocate Provided that in case where the petition is filed from the judgment or order of a Subordinate Court as in the case of Civil Revision Criminal Revision and Civil Review and where the facts are borne out by the records of the Court an affidavit signed and dated by the Advocate s clerk may be accepted and the parties affidavit dispensed with iv) presented either by the petitioner or declarant or his recognised agent or his Advocate or some person appointed in writing in each case by such Advocate to present the same Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 14. When the petitioner in any petition or the declarant in any affidavit speaks to any fact within his knowledge he must do so directly and positively using the words I affirmand say 15. When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall if the facts are ascertained i) from another person give such details of such person as are required by Rule 11 ii) from a document or copy of a document state the source from which it was procured and shall state his belief as to the truth of such fact 26. No petition or affidavit shall be read or used in the High Court which does not comply with the provisions of this Chapter. 8. The importance of affidavits strictly conforming to the requirements laid out in Order XIX Rule 3 of the Civil Procedure Code 1908 has been discussed as far back as in 2010 in Padmabati Dasi v. Rasik Lal Dhar1 wherein the Hon ble High Court of Calcutta held as under We desire to impress on those who propose to rely on affidavits that in future the provisions of Order XIX Rule 3 ILR 37 Cal 259 7 must be strictly observed and every affidavit should clearly express how much is a statement of the deponent s knowledge and how much is a statement of his belief and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent s belief The Hon ble Supreme Court of India confirmed the aforesaid position in State of Bombay v Purushottam Jog Naik 2 wherein a Constitution Bench while considering the importance of verification of an affidavit among others held as under We wish however to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed Further in Barium Chemicals Ltd. v. Company Law Board3 the Hon ble Supreme Court has posited that where evidence was adduced by affidavit such an affidavit could be verified either on knowledge or from sources but the basis of such knowledge or source of information must be clearly Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 stated. Further more recently in Amar Singh v. Union of India4 the Hon ble Supreme Court struck a note of caution as under AIR 1952 SC 317 1966SCR 3117 SCC 69 8 "64. This Court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog NaikBarium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar3 SCC 864 and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove except on interlocutory applications on whose statements of his belief may be admitted provided that the grounds thereof are stated 9. Interestingly the question of whether an advocate s clerk is empowered to swear an affidavit was thoroughly discussed in the leading case of Smt. Savitramma v. Cicil Naronha and Anr.5 wherein the Hon ble Supreme Court held that 2. ...In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19 Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court in the form of affidavit...If the statement of facts is based on information the source of information must be disclosed in the affidavit 5. The matter does not rest here. The affidavit filed on behalf of the accused in reply to the contempt petition is shocking 1988 Supp SCC 655 9 The office clerk of the advocate for the accused has filed affidavit on behalf of the accused in reply to the contempt petition. The deponent of the counter affidavit has verified the affidavit saying that the statements of the case of the accused are true and correct which are based on the records maintained in the office of the advocate and based on the instructions received from the clients. Such an affidavit is wholly improper and inadmissible in evidence and liable to be rejected. What reliance can be placed on an affidavit filed by a person sitting at Delhi and that too a clerk of an advocate practising at Delhi giving reply to the allegations and facts and circumstances existing at Karnataka on the basis of records maintained in advocate s office at Delhi The practice of clerks of advocates filing affidavits without a proper verification should be Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 deprecated. As matters before the Apex Court are determined on the basis of the statements contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in accordance with the rules to assist the court in administering justice Furthermore in Someswar Gogoi v. State of Assam6 the Hon ble High Court of Gauhati held as We are of the view that the best person to swear an affidavit is undoubtedly the petitioner himself and normally an affidavit should be verified by him. In case the petitioner be ailing or infirm he can definitely depute somebody else who is to full know of things whose affidavits would satisfy the mind of the Court about the correctness of the averments made in the petition. It is too well known that when a writ petition is filed either the petitioner or somebody being in know of things comes to brief the Counsel. In such a situation it should not be difficult to get the required affidavit verified by such a person If an Advocate s clerk has to verify the affidavit all that he can say is that what has been stated by him relating to the facts of the case is true to the information derived by him either from the petitioner or some tadbir karak. Now if the petitioner or tadbir karak had come to brief the counsel we do not find any reason as to why such I a person should not be asked to verify the affidavit. It may be pointed out that provision of Order 19 Rule 3 requires giving of source off information when the fact is not true to the knowledge of the deponent. In such a situation if the advocate s clerk has merely to say what has been stated by him is true to the information supplied by the petitioner as he shall have to say unless he has direct knowledge of the facts the Court 1988 SCC OnLine Gau 10 10 would: not know whether the information supplied by the petitioner was true to his knowledge or he himself in turn has derived the same from some other source. An affidavit of an Advocate s clerk in such a situation cannot inspire full confidence in the mind of the Court about the correctness of the averments made in the petition It would be apposite to note the following observations made by the High Court of Madras in Tamizhaga Panchalai Thozhilalar Sangam v. The Presiding Officer and Ors7. 23. Though under the Vakalat an Advocate is authorised to appear and defend the proceeding has the duty to represent the proceedings a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust by the advocate s clerk Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts enable the pleader s clerk to file an affidavit on behalf of the litigant. Where the Advocate s clerk has committed a bona fide or inadvertent mistake or there is an accidental omission or typographical error in a pleading by the typist engaged by the pleader in his office it is the litigant or the pleader to file an affidavit explaining the reasons for the said mistake on the basis of his personal knowledge or information as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate to a Clerk or to a typist to any other employee in the Pleader s office to act on behalf of a Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit 10. An affidavit is an accepted mode of placing evidence before the Court. A party uses an affidavit to prove a fact or facts before the Court. Perforce such an affidavit should always be in accordance with the prescribed Rules. The purpose underlying the Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are 2012 SCC OnLine Mad 3105 11 based in the affidavit on the basis of personal knowledge information and belief. This is relevant for the purpose of appreciating the evidence placed before the Court in the form of affidavit in the right perspective. It is for this very reason that a party swearing an Affidavit must disclose as to what facts are true to his personal knowledge information or belief. If the statement of fact is based on information such source of information must be disclosed in the affidavit. An affidavit which does not comply with these provisions has no probative value and it is liable to be rejected. An advocate s clerk who has no personal knowledge of the facts of the case nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form content and degree of knowledge required to be included in an affidavit to ensure the reliability and veracity of the same any affidavit which is not in strict consonance with the same has to be discarded 11. It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate s clerk. This specific exception was made perhaps keeping in mind 12 that in certain cases as aforementioned the records of the case are already present in the records of the Court. In such a situation the advocate s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made. Since the Rules made by different High Courts have to be in conformity with Order XIX of the CPC which broadly deals with affidavits this exception envisaged in the Orissa High Court Rules is restricted in its use. In all cases arising out of the original jurisdiction of the Court including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii) the question of an affidavit being filed by an advocate s clerk is impermissible and perverse. When a rule provides for an exception it has to be strictly construed and cannot be diluted 12. Furthermore a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts statements etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources. Even then the affidavit will be subject to Rule 26. Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition the question of 13 him being permitted to file an affidavit does not arise. It has rightly been left out in the Rules which specify that only the petitioner declarant or an advocate can sign such an affidavit Indian Kanoon Thabir Sagar vs State Of Odisha on 18 June 2021 13. This practice of advocate s clerks filing affidavits is unacceptable. The Registry is directed to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions applications under the original jurisdiction of the Court made in gross violation of Rule 26 of the Orissa High Court Rules 14. A conjoint reading of the abovementioned Rules thereby lead this Court to an irresistible i. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge ii. In certain situations i.e. in interlocutory applications if the deponent chooses to rely on other sources on which he bases his belief the details of such person document etc. must clearly be stated and it must be explained how the information was procured iii. An affidavit may be presented either by the petitioner or the declarant or the Pairokar or advocate or such person as duly appointed in writing only iv. If a petition is filed from the judgment or order of a Subordinate Court where the facts are borne out by the records of the Court an affidavit signed and dated by the Advocate s Clerk may be accepted as per Rules and v. Any affidavit not in complete compliance with the provisions shall not be relied upon or used 14 15. In view of the above this Bail Application being defective is accordingly dismissed. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case nor shall the trial Court be influenced by these observations. The petitioner can file a fresh Bail Application if he is so advised S.K.Panigrahi) Judge Orissa High Court Cuttack The 18th day of June 2021 AKK LNB AKP Indian Kanoon

Disputes under the Transfer of Property Act are Arbitrable: Supreme Court of India

Disputes that arise between landlord and tenant under Transfer of Property Act, 1882, are Arbitrable and the ones that arise under the Rent Act are not. This ratio was laid down by the Supreme Court of India presided over J. A.S. Bopanna in the case of Suresh Shah Vs. Hipad Technology India Private Limited, [Arbitration Petition (Civil) No(s). 08/2020].   The brief facts of this case are that there was a dispute between the Petitioner and the Respondent regarding sub-lease of a premise. The Deed between the parties consist a clause that any dispute between the parties should be resolved by Arbitration. Therefore, the Petitioner approached the court under Section 11(5) of the Arbitration and Conciliation Act, 1996, for appointing a Sole Arbitrator. The Court observed that the Arbitration qualifies as an International Commercial Arbitration as the Petitioner is a citizen of Kenya. Further, the Petitioner submitted that the dispute is Arbitrable as the rights of the tenant are not protected by any special statute. Further, there would be no impediment for resolving dispute through Arbitration. The Court analyzed Section 114 A and 114 of the Transfer of Property Act and further relied on the landmark judgments of Namdeo Lokman Lodhi Vs. Narmadabai & Ors., and stated that in case of disputes between lease and sub-lease in the Transfer of Property Act, normally the court has the jurisdiction to adjudicate upon the same but if the parties have conferred jurisdiction to an Arbitral Tribunal in their agreement then the dispute can be solved through Arbitration. But if the lease/sub-lease is governed by a Special statute like the Rent Act, then the only the court that has been conferred jurisdiction by the Act can adjudicate over the dispute. As the court does not only look over the validity of the agreement but the bona-fide requirement and comparative hardships.

The petitioner has instituted this petition under ‘Act 1996’ for short) seeking appointment of a Sole Arbitrator for resolving the disputes that have arisen The property bearing No.154­B Block ‘A’ Sector 63 Phase­III NOIDA Gautam Budh Nagar U.P. having been initially allotted and leased by New Okhla Industrial Development Authority under a Lease dated 26.03.2003 had changed hands and the lease was ultimately transferred in favour of the petitioner under a Sub­Leased the same to the respondent under the Sub­ Deed provides for resolution of the disputes through Sole Arbitrator and sought concurrence from the The petitioner is therefore before this Court seeking on 02.03.2020. Despite service the respondent has not have heard Mr. Vikas Dhawan learned counsel for the The parties to the petition have entered into a Sub­ terms and conditions agreed under the Sub­Lease Deed certain disputes have arisen between the parties. In the disputes differences or “12.1 All disagreements arising out of in connection with or in relation to this Sub­Lease Deed including w.r.t performance termination in the first instance shall be endeavored to be settled through good faith mutual discussions between the officials of the Sub­Lessor and the Sub­ period of 21 Mukul Mudgal as the Sole Arbitrator and indicated that if the indicates that the disputes between the parties is to be resolved through Arbitration. A further perusal of the Clause indicates that the parties have agreed to secure appointment of the Arbitrator through the High Court of and also the averments in the petition indicate that the of Nairobi Kenya. Thus the petitioner being an individual that country having entered into a contract and since disputes have arisen under the said document the same qualifies as an ‘International Commercial Arbitration’ as defined in Section 2(f) of Act 1996. In such circumstance Supreme Court is to appoint an Arbitrator as provided Court as stated in the contract entered into between the However before considering the appointment of Arbitrator the first part of Clause 12 providing for the dispute relating to lease tenancy agreements deeds when such lease is governed by Transfer of Property Act 1882 and iron out the creases on the such there is no impediment for resolving the dispute by the Supreme Court in the case of Booz Allen and 2011) 5 SCC 532 leaves no doubt. In order to put the “35. The Arbitral Tribunals are private fora chosen voluntarily by the parties to the constituted under the laws of the country Every civil or commercial dispute either unless the jurisdiction of the Arbitral necessary implication. Adjudication of as a matter of public policy. Certain other categories of cases though not expressly reserved for adjudication by public fora courts and tribunals) may by necessary of private fora. Consequently where the cause dispute is inarbitrable the court 36. The well­recognised examples of non­ arbitrable disputes are: disputes relating disputes relating to divorce judicial separation restitution of conjugal rights child custody guardianship matters and eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection Notwithstanding the same there is a deflection from Enterprises vs. Kamaljeet Singh Ahluwalia 10 suit against the tenant for eviction. In the said suit the tenant filed an application under Section 8 of Act 1996 seeking reference to arbitration since the parties were High Court. The Supreme Court while deciding the same issue arose in respect of premises governed under the Bombay Rents Hotel and Lodging Houses Rates Control Act 1947 and the case of Booz Allen supra) wherein it was clearly indicated that non arbitrability is in respect of tenancy governed by special statutes still upheld the order rejecting the application under Section 8 of Act 1996 seeking reference to 10. The observations contained in para 23 and 24 of the non­arbitrability of disputes relating to the lease tenancy governed under TP Act. The said “23. The learned counsel for the appellant however argued that the provisions of the Delhi Rent Act 1995 are not applicable to the premises by virtue of Section 3(1)(c) of Ltd. v. Navrang Studios 1 SCC 523] 5 SCC 532 cases relating to rent and eviction of the a provision by virtue of it the premises but that does not mean that the Arbitration Act ipso facto would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction rent disputes. In such a situation the rights of the parties and the demised of Property Act and the civil suit would be triable by the civil court and not by the Act are not applicable to certain premises premises. In this view of the matter it cannot be contended that the provisions of the Arbitration Act would therefore apply to 11. The said observations are made by a Bench of two Hon’ble Judges without detailed reference to the scope of the provisions or the manner of right and protection arbitration. In that light another Bench of two Hon’ble Judges speaking through R.F. Nariman J. in the case of Vidya Drolia & Ors. vs. Durga Trading Corporation 2019) SCC online SC 358 noticed that Natraj Studios supra) had dealt with tenancy under Rent Act and Booz Allen had made reference to special statutes and had not stated with respect to non­arbitrability of cases arising under TP Act. In that regard having noted the “16. In fact a close reading of Section 114 would show that the rights of landlord and tenant are balanced by the aforesaid provision. This is because where a lease of immoveable property has determined by hearing of the suit the lessee pays or tenders to the lessor the rent in arrears together with interest thereon and the deposit of rent in arrears but also interest thereon and full costs of the suit The option given of course is that security that the Court is given a discretion in the tenant or it may not. This itself shows that Section 114 cannot be said to be a capable of remedy. However the exception this would not apply to assigning sub­ letting parting with the possession or that every one of the grounds stated in and or 114A are grounds which can be raised before an arbitrator to decide as to 12. Further with specific reference to the consideration in “24. A perusal of both the aforesaid judgments therefore shows that a Transfer and tenant is very far removed from the situation in either Natraj Studiosor in sub­paragraph of paragraph 36 of Booz Allenwhere such time is limited conditionally on the happening of some event—by the c) where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the lessor in the whole of the property become e) by express surrender that is to say in g) by forfeiture that is to say in case the lessee breaks an express condition which provides that on breach thereof the lessor may re­enter or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or the lessee is adjudicated an insolvent and the lease in writing to the lessee of his intention to the lease or to quit or of intention to quit “114. Relief against forfeiture for non­ payment of rent.— Where a lease of forfeiture for non­payment of rent and the lessor sues to eject the lessee if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit or gives such security as payment within fifteen days the Court may an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture 114A. Relief against forfeiture in certain other cases.—Where a lease of immovable property has been determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor specifying the particular breach b) if the breach is capable of remedy Nothing in this section shall apply to an express condition against assigning under­ letting parting with the possession or disposing of the property leased or to an express condition relating to forfeiture in A perusal of the provisions indicate the manner in which the determination of lease would occur which also lessee tenant in breaking the express condition agreed consequent forfeiture could also be with respect to non­ determined by forfeiture and the lessor sues to eject the lessee and if at the hearing of the suit the lessee pays or the lessee to remedy the breach. No doubt the said provisions provide certain protection to the lessee tenant before being ejected from the leased property. In our considered view the same cannot be construed as a equitable jurisdiction in appropriate cases as a matter of discretion. This position has been adverted to by the Namdeo Lokman Lodhi vs. Narmadabai & Others (AIR could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of “…..With great respect we think that the observations cited above contain sound principles of law. We are therefore unable to Act confers a discretion on the court that discretion except in cases where third party in favour of the tenant irrespective of the 16. Such equitable protection does not mean that the the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However if the parties in the the landlord would be entitled to invoke the arbitration landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express On the other hand the disputes arising under the Rent Acts will have to be looked at from a different view the reason that notwithstanding the terms and conditions statute namely the Rent Act the premises being amenable to the provisions of the Act would also provide statutory protection against eviction and the courts specified in the resolve such other disputes. In such proceedings under special statutes the issue to be considered by the aspects such as the bonafide requirement comparative therefore such cases are not arbitrable. As indicated above the same is not the position in matters relating to the lease tenancy which are not governed under the special to matters governed by special statutes where the tenant the statute alone can adjudicate such matters. Hence in such cases the dispute is non­arbitrable. If the special statutes do not apply to the premises property and the Arbitration Clause the dispute between the parties is opinion expressed by the Co­ordinate Bench while answering the reference made in the case of Vidya Drolia wherein the view taken in Himangni Enterprises is 19. As noted above the petitioner in the instant case while In the result the petition is allowed. Shri Justice resolve the dispute between the parties. The arbitral fee Act 1996. There shall be no order as to costs in this

Municipal Council, Ratlam vs Shri Vardhichand & Ors

Background For leading a quality life a clean and a healthy environment is indispensable. A person will remain healthy only if he is provided with fresh air to breathe, clean water to drink and other basic requirements. So in order to live a dignified and healthy life it is important for a person to be surrounded by a clean environment. Thus, the right of the people to live in a clean and healthy environment is a basic human right, fundamental to live a decent life, the violation of which will be considered a violation of basic right to life. This case issues the Ratlam municipality’s responsibilities to its citizenry below Section 123 M. P. Municipalities Act of 1961. These responsibilities encompass the availability of sanitary centers and also the prevention of road infection from a close-by alcohol plant. The citizens of the Ratlam municipality, stung at the shortage of sanitary centers and therefore the infection within side the streets, introduced in shape towards the municipality under Section 133 of the Criminal Procedure Code for Nuisance. The municipality argued that, 1) the citizens selected to remain wherein there are not any centers, and 2) the government lacked the finances essential to assemble what was required to comply.Facts of the CaseInhabitants of Ratlam metropolis located inside the territory of Madhya Pradesh had been the petitioners. Residents of Ratlam moved an application under S.133 of Cr.P.C. before the Sub-Divisional Magistrate in opposition to the Municipality declaring that the authorities have didn’t meet the basic duty of presenting the sanitary facilities on the roads, public conveniences for slum dwellers the utilization of the road and prevention of the discharge from the within sight Alcohol Plant of malodorous fluids into the overall public road that makes public nuisance to the petitioners of the case. The Sub Divisional Magistrate of Ratlam district directed the municipality to place together a right set-up plan inside 6 months of the objection prepare through the citizens of Ratlam metropolis. The commands through the Sub-Divisional Magistrate to the municipality had been affirmed through high court. Thereafter, the municipality came in attraction below the constant gaze of the apex courtroom docket of India and claimed that they don’t have suitable economic assist additionally to right finances to comply with the guidance given through the sub-divisional Justice of the Peace of Ratlam metropolis. From that factor forward, Supreme Court offers steering to the municipality to look at the commands given through the Sub-Divisional Justice of the Peace below Section 123 of Municipality Act, 1961 and stated that loss of finances is not a protection to perform the basic responsibilities performed through the nearby government of a particular region.Legal Provisions Involved1. Section 123, M.P. Municipalities Act, 19612. Section 133, Criminal Procedure Code, 19733. Section 188, Indian legal code, 1860Issues InvolvedWhether through affirmative movement a courtroom docket can compel a statutory frame to perform obligation within the direction of network to have a right sanitation facility at more fee and time certain basis?Arguments from PetitionerMunicipal Council contended at the ground that the population of that locality has picked that location with their very own choice and owners of the residence absolutely aware of the unsanitary situations triumphing there. Thereby the proprietor of the homes precluding their proper to the grievance approximately the insanitary circumstance triumphing there. Municipal Council moreover argued that there has been obstacle of economic assets for the development of and provision of offerings to fulfill the commands given through the Sub Divisional Magistrate of Ratlam metropolis.Arguments from RespondentRespondents contended that the Municipality of Ratlam metropolis had overlooked to satisfy its responsibilities furnished through the sub-divisional Justice of the Peace to cope with public fitness which has through neglecting to lower pollutants and different dangerous waste from affecting their homes. Respondents focused to forestall pollutants introduced through runoff from a close-by alcohol plant, moderation of open waste that accrued in open swimming pools and inadequately tired areas, mitigation of malaria because of status water, and therefore the manufacturing of sanitary centers to stop the glide of excretory product into their neighboring areas.JudgmentJustice Krishna Iyer distinguished the provisions within the IPC and Criminal Procedure Code identifying with the law of nuisance and deciphered them within the current case.Initially, the extent that the statutory obligation goes, the municipality cannot avoid its obligation disregarding its rule book/legislation which puts a positive obligation thereon.Secondly, the court considered the aspect of common nuisance in contravention of Section 133 of the Criminal Procedure Code.Section 133 to Section 143 of the Criminal Procedure Code is exclusive provisions that lay down procedural further as substantive law. They’re also called “summary remedies”. Section 133 sets out the authorities of Magistrate/Sub Div. Magistrate together with the method where a “conditional order” is given. as an example, one can truly constrain a police officer to take action which might be passed on to the magistrate who issues show-cause notice concerning the explanation asking the violator why the conditional order shouldn’t be passed. He must appear before the magistrate for the equivalent. This order is hence emptied (if compiled with) otherwise is made perpetual.A public authority’s direction can not be defied and if not followed is punishable under section 188 of the IPC 1860. Section 188 of the IPC, mandates the satisfaction of the subsequent ingredients to constitute a violation,It is likewise proved with the help of using the proof given with the help of using the candidates that occasionally the facility Alcohol manufacturing unit that’s located outdoor the premises of the Municipal Council and it flows its grimy and filthy water into the stated Nallah, because of this additionally the obnoxious scent is spreading within the course of the New Road or so it’s far the bounden obligation of the Municipal Council and also the Town Improvement Trust to try and do the desirable on this respect. The grimy water which flows from the toilets and urinals of the residential homes has no outlet and since of this reason, there are numerous pits at the southern aspect of the New Road and all of the pits are complete of grimy and stinking water. So, it is pretty vital to assemble an outlet for the grimy water with inside the stated locality. The Court held that the Municipal Council becomes obliged to require duty for the situations of new Road, which are located to be a public nuisance. This becomes the top results of a aggregate of legal guidelines: – The Municipal Council’s obligation as stipulated in section 123 M.P.M.A. – The authority of the Magistrate’s courtroom docket to form orders regarding public nuisances as distinctive in section 133 Cr.P.C. (with the danger of punitive enforcement in section 188 I.P.C.). The Municipal Council’s felony duties covered presenting ok public latrines, filling with inside the cesspools, preventing the float of effluent, and spraying capability malaria infestation. The Court rejected the Municipal Council’s argument that economic constraints prohibited it from obeying the Magistrate’s order. The Court held that the Municipal Council might want to not “run far from its important obligation with the help of using pleading economic lack of ability” which “decency and dignity” are “nonnegotiable aspects of human rights” which constituted a “first rate on neighborhood self-governing bodies.” The Court held that sanitized public locations should no longer get on the threat of a “self created bankruptcy” or a “perverted expenditure budget. The Court held that it had the authority to want the Municipal Council to undertake a specific scheme closer to assembly its duties below the order. Justification for “affirmative motion on a time-sure basis” become on the premise of the extreme circumstances, which include the sizeable loss of managing malaria concerns. Therefore the Court becomes obliged to act as greater than a mere “umpire” or “adjudicator.” The Court selected one in all the three schemes offered with the help of using professional engineers from each the Applicants and Respondents, which offered stability among realizing the Municipal Council’s statutory duties, and acknowledging its economic and time constraints. To additionally manipulate the economic needs of the orders, and according with the directive important of enhancing public fitness enshrined in Article forty seven of the Constitution, the Court directed the authorities of Madhya Pradesh to lend the vital finances to the Municipal Council.RATIO DECIDENDIAdding to the above dialogue courtroom docket additionally stated the Gobind Singh case which worried the Justice of the Peace directing the proprietor of the bakery to demolish his oven and chimney because it made a burden on the final public at big below the sizeable sections detected above. The Supreme Court eventually did now now not completely concur with the complete closure which could fold the baker’s trade (asking a baker to prevent trade), but trusted the discoveries of the Sub Divisional Justice of the Peace with inside the neighborhood inspection of the positioning. This becomes a extrude in role from the earlier precedents wherein the courtroom docket puzzled the “clinical proof” or the findings of the Justice of the Peace. Therefore the courtroom docket took an excellent thing from the judgment in Gobind Singh case and quoted it, “We are of the opinion that in a depend of this nature wherein what’s worried isn’t simply the correct of a non-public man or woman however the fitness, safety, and luxury of the overall public at big, the safer direction may be to easily accept the view of the discovered Magistrate, who noticed for himself the prospect thanks to the operating of the bakery.”The Municipality cannot declare economic lack of ability whilst it’s miles in command of retaining public fitness.Conclusionit’s visible that the judges have opted to be liberal in deciphering the ambit of social justice. Apparently, the traditional historical past become additionally in assist of the judgment as India had very lately confronted an emergency which become notably puzzled on its unjustness. The case reiterates the broad interpretation and also the role of the judges in reforming the laws of the country by prioritizing the freedom and dignity of the people. The judiciary has considered the human rights on one hand and also the environmental safety alternatively because the 2 faces of the identical coin. the selection proves that judiciary could be a protector of essential rights as during this situation it covered the right of each man or woman with regards to surroundings below Art. 21 of the Constitution. This judgment became a watch opener for the overall public-lively people and endorsed them to record petitions to clear up neighborhood environmental issues. This reformed the whole device and a few of instances were filed prior to exceptional courts in search of treatments towards environmental pollution. The content material of the case visible at the side of the Article 32 and 226 of the Constitution of India become to facilitate the emergence of PIL, having been framed or amended upon the tenets of social justice. Definitely the case become reasoned and justified with the help of using the Hon’ble judges of the Supreme Court of India. References

Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 Supreme Court of India Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 Equivalent citations: 1980 AIR 1622 1981 SCR97 Author: V Krishnaiyer Bench: Krishnaiyer V.R PETITIONER MUNICIPAL COUNCIL RATLAM Vs SHRI VARDHICHAND & ORS DATE OF JUDGMENT29 07 1980 KRISHNAIYER V.R KRISHNAIYER V.R REDDY O. CHINNAPPA97 1980 SCC 162 CITATOR INFO RF 1981 SC 344 of a prominent residential locality of the Municipalityin their complaint under s. 133 Criminal Procedure Code to the Sub Divisional Magistrate averred that the Municipality had failed despite several pleas to meet its basic obligations like provision of sanitary facilities on the roads public conveniences for slum dwellers who were using the road for that purpose and prevention of the discharge from the nearby Alcohol Plant of maladorous fluids into the public street and that the Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 Municipality was oblivious to the statutory obligation envisaged in s. 123 M. P. Municipalities Act 1961 The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality on their own choice fully aware of the insanitary conditions and therefore they could not complain. It also pleaded financial difficulties in the construction of drains and provision of amenities The Magistrate found the facts proved and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under s. 188 I.P.C The order of the Magistrate was found unjustified by the Sessions Court but upheld by the High Court In the Special Leave Petition by the Municipality to this Court on the question whether a Court can by affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis HELD : 1. Wherever there is a public nuisance the presence of s. 133 Criminal Procedure Code must be felt and any contrary opinion is contrary to the law.2 SCC 267 279 12. The state will realise that Art. 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties. The municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health.but also through activated tort consciousness. The officers in charge Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment corporate and personal.No. 28579 From the Judgment and Order dated 6 8 1979 of the Madhya Pradesh High Court in Crl. Revision Sobhag Mal Jain and S. K. Jain for the Petitioner. C. S. Chhazed Miss Manisha Gupta and M. S Gupta for Respondents 1 5 S. K. Gambhir for the State The Order of the Court was delivered by KRISHNA IYER J. `It is procedural rules as this appeal proves `which infuse life into substantive rights which activate them to make them effective . Here before us is what looks like a pedestrian quasi criminal litigation under s. 133 Cr.P.C. where the Ratlam Municipality the appellant challenges the sense and soundness of the High Court s affirmation of the trial court s order directing the construction of drainage facilities and the like which has spiralled up to this Court. The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of `standing of British Indian vintage. If the centre of gravity of justice is to shift as the Preamble to the Constitution mandates from the traditional individualism of locus standi to the community orientation of public interest litigation these issues must be considered. In that sense the case before us between the Ratlam Municipality and the citizens of a ward is a path finder in the field of people s involvement in the justicing process sans which as Prof. Sikes points outthe system may `crumble under the burden of its own insensitivity . The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis. At issue is the coming of age of that branch of public law bearing on community actions and the court s power to force public bodies under public duties to implement specific plans in response to public Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 The circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application especially in the Third World humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction. The Ratlam municipal town like many Indian urban centres is populous with human and sub human species is punctuated with affluence and indigence in contrasting co existence and keeps public sanitation a low priority item. what with cesspools and filth menacing public health. Ward No. 12 New Road Ratlam town is an area where prosperity and poverty live as strange bedfellows. The rich have bungalows and toilets the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities. And the city fathers being too busy with other issues to bother about the human condition cesspools and stinks dirtied the place beyond endurance which made the well to do citizens protest but the crying demand for basic sanitation and public drains fell on deaf ears. Another contributory cause to the insufferable situation was the discharge from the Alcohol Plant of malodorous fluids into the public street. In this lawless locale mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing with no municipal agent disturbing their stinging music at human expense. The local denizens driven by desperation at long last decided to use the law and call the bluff of the municipal body s bovine indifference to its basic obligations under s. 123 of the M. P. Municipalities Act 1961In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely XX XX XX b) cleansing public streets places and sewers and all places not being private property which are open to the enjoyment of the public whether such places are vested in the Council or not removing noxious vegetation and abating all public c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish And yet the municipality was obvious to this obligation towards human well being and was directly guilty of breach of duty and public nuisance and active neglect. The Sub Divisional Magistrate Ratlam was moved to take action under s. 133 Cr.P.C. to abate the nuisance by ordering the municipality to construct drain pipes with flow of water to wash the filth and stop the stench. The Magistrate found the facts proved made the direction sought and scared by the prospect of prosecution under s. 188 I.P.C. for violation of the order under s. 133 Cr.P.C. the municipality rushed from court to court till at last years after it reached this Court as the last refuge of lost causes. Had the municipal council and its executive officers spent half this litigative zeal on cleaning up the street and constructing the drains by rousing the people s sramdan resources and laying out Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 the city s limited financial resources the people s needs might have been largely met long ago. But litigation with other s funds is an intoxicant while public service for common benefit is an inspiration and in a competition between the two the former overpowers the latter. Not where a militant people s will takes over people s welfare institutions energises the common human numbers canalises their community consciousness forbids the offending factories from polluting the environment forces the affluent to contribute wealth and the indigent their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance not neglected ghettoes noisy with squabbles among the slimy slum dwellers nor with electoral sound and fury signifying nothing. The Magistrate whose activist application of s. 133 Cr.P.C. for the larger purpose of making the Ratlam municipal body to do its duty and abate the nuisance by affirmative action has our appreciation. He has summed up the concrete facts which may be usefully quoted in portions New Road Ratlam is a very important road and so many prosperous and educated persons are living on this Road. On the southern side of this Road some houses are situated and behind these houses and attached to the College boundary the Municipality has constructed a road and this new Road touches the Government College and its boundary. Just in between the said area a dirty Nala is flowing which is just in the middle of the main road i.e. New Road. In this streammany a time dirty and filthy water of Alcohol Plant having chemical and obnoxious smell is also released for which the people of that locality and general public have to face most obnoxious smell. This Nala also produces filth which causes a bulk of mosquitoes breeding. On this very southern side of the said road a few days back municipality has also constructed a drain but it hasconstructed it completely but left the construction in between and in some of the parts the drain has not at all been constructed because of this the dirty water of half constructed drain and septic tank is flowing on the open land of applicants where due to insanitation and due to non removing the obstructed earth the water is accumulated in the pits and it also creates dirt and bad smell and produces mosquitoes in large quantities. This water also goes to nearby houses and causes harm to them. For this very reason the applicants and the other people of that locality are unable to live and take rest in their respective houses. This is also injurious to health There are more dimensions to the environmental pollution which the magistrate points out A large area of this locality is having slums where no facility of lavatories is supplied by the municipality. Many such people live in these slums who relieve their lateral dirt on the bank of drain or on the adjacent land. This way an open latrine is created by these people. This creates heavy dirt and mosquitoes. The drains constructed in other part of this Mohalla are also not proper it does not flow the water properly and it creates the water obnoxious. The Malaria Department of the State of M.P. also pays no attention in this direction. The non applicants have not managed the drains Nallahs and Naliyan properly and due to incomplete construction the non applicants have left no outlet for the rainy water. Owing to above reasons the water is accumulated on the main road it passes through living houses sometimes snakes and scorpions come out and this obstruct the Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 people to pass through this road. This also causes financial loss to the people of this area. The road constructed by Nagarpalika is on a high level and due to this this year more water entered the houses of this locality and it caused this year more harm and loss to the houses also. This way all works done by the non applicants i.e. construction of drain canal and road come within the purview of public nuisance. The non applicants have given no response to the difficulties of the applicants and non applicants are careless in their duties towards the public for which without any reason the applicants are facing the intolerable nuisance. In this relation the people of this locality submitted their returns notices and given their personal appearance also to the non applicants but the non applicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same whereas all the non applicants are responsible for the public nuisance Litigation is traumatic and so the local people asked first for municipal remedies failing which they moved for magisterial remedies At the last the applicants requested to remove all the nuisance stated in their main application and they also requested that under mentioned works must be done by the non applicants and for which suitable orders may be issued forthwith 1. The drains constructed by Municipality are mismanaged and incomplete they should be managed and be completed and flow of water in the drains should be made so that the water may pass through the drain without obstruction 2. The big pits and earthen drains which are situated near the College boundary and on the corners of the road where dirty water usually accumulates they should be closed and the filth shall be removed therefrom 3. The big Nala which is in between the road should be managed and covered in this way that it must not create overflow in the rainy season 4. The Malaria Department should be ordered to sprinkle D.D.T. and act in such a manner and use such means so that the mosquitoes may be eradicated completely from the said locality The proceedings show the justness of the grievances and the indifference of the local body Both the parties heard. The court was satisfied on the facts contained in their application dated 12 5 72 and granted conditional order against non applicants No 1 and 2 u s 133 of Cr. P.C.and the court directed to remove all the nuisances within 15 days and if the non applicants have any objection or dissatisfaction against the order then they must file it on the next date of hearing in XX XX XX "The applicants got examined the following witnesses in their evidence and after producing following documents they closed their evidence Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 XX XX XX "No evidence has been produced by the non applicants in spite of giving them so many opportunities. Both the parties heard and I have also inspected the XX XX XX "The non applicanthas sought six times to produce evidence but all in vain. Likewise non applicanthas also produced no evidence The Nallah comes into picture after the construction of road and bridge. It has shown that Nallah is property of Nagarpalika according to Ex.p 10. Many applications were submitted to remove the nuisance but without result According to Sec. 32 to 43 of the Town Improvement Trust Act it is shown that it has only the provisions to make plans. Many a time people tried to attract the attention of Municipal Council and the Town Improvement Trust but the non applicants always tried to throw the responsibility on one another shoulder XX XX XX It is submitted by non applicantthat the said Nallah belongs to whom it is still disputed i.e. whether it belongs to non applicant 1 or 2. Shastri Colony is within the area of Town Improvement Trust. The Nagarpalika non applicant No 1) is financially very weak. But Municipal Council is not careless towards its duties Non applicantargued that primary responsibility lies with the Municipal Council only. There is no drainage system At the end of it all the Court recorded: ............... after considering all the facts I come to this conclusion that the said dirty Nallah is in between the main road of Ratlam City. This dirty Nallah affects the Mohalla of New Road Shastri Colony Volga Talkies and it is just in the heart of the city. This is the very important road and is between the Railway Station and the main city. In these mohallas cultured and educated people are living. The Nallah which flows in between the New Road and Shastri Colony the water is not flowing rapidly and on many places there are deep pits in which the dirty water is accumulated. The Nallah is also not straight that is also the reason of accumulation of dirty water. The Nallah is not managed properly by the non applicants. It is unable to gush the rainy water and due to this the adjoining areas always suffer from over flowing of the water and it causes the obstruction to the XX XX XX It is also proved by the evidence given by the applicants that from time to time the Power Alcohol factory which is situated outside the premises of the Municipal Council and it flows its dirty and filthy water into the said Nallah due to Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 this also the obnoxious smell is spreading throughout the New Road or so it is the bounden duty of the Municipal Council and the Town Improvement Trust to do the needful in this respect XX XX XX The dirty water which flows from the lavatories and urinals of the residential houses have no outlet and due to this reason there are many pits on the southern side of the New Road and all the pits are full of dirty and stinking water. So it is quite necessary to construct an outlet for the dirty water in the said locality In this area many a places have no drainage system and if there is any drain it has no proper flow and water never passes through the drain properly. That causes the accumulation of water and by the time it becomes dirty and stink and then it produces mosquitoes there The Magistrate held in the end Thus after perusing the evidence I come to this conclusion and after perusing the applications submitted by the persons residing on the New Road area from time to time to draw the attention of the non applicants to remove the nuisance the non applicants have taken no steps whatsoever to remove all these public nuisances He issued the following order which was wrongly found unjustified by the Sessions Court but rightly upheld by the High Court Therefore for the health and convenience of the people residing in that particular area of all the nuisance must be removed and for that the following order is hereby 1) The Town Improvement Trust with the help of Municipal Council must prepare a permanent plan to make the proper flow in the said Nallah which is flowing in between Shastri Colony and New Road. Both the non applicants must prepare the plan within six months and they must take proper action to give it a concrete form 2) According to para 13 a few places are described which are either having the same drains and the other area is having no drain and due to this the water stinks there so the Municipal Council and the Town Improvement Trust must construct the proper drainage system and within their own premises where there is no drain it must be constructed immediately and all this work should be completed within six months 3) The Municipal Council should construct drains from the jail to the bridge behind the southern side of the houses so that the water flowing from the septic tanks and the other water flowing outside the residential houses may be channellised and it may stop stinking and it should have a proper flow so that the water may go easily towards the main Nallah. All these drains should be constructed completely within six months by the Municipal Council Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 4) The places where the pits are in existence the same should be covered with mud so that the water may not accumulate in those pits and it may not breed mosquitoes The Municipal Council must complete this work within two months A notice under Section 141 of the Criminal Procedure Codemay be issued to the non applicants Nos. 1 and 2 so that all the works may be carried out within the stipulated period. Case is hereby finalised Now that we have a hang of the case we may discuss the merits legal and factual. If the factual findings are good and we do not re evaluate them in the Supreme Court except in exceptional cases one wonders whether our municipal bodies are functional irrelevances banes rather than booms and lawless by long neglect not leaders of the people in local self government. It may be a cynical obiter of pervasive veracity that municipal bodies minus the people and plus the bureaucrats are the bathetic vogue no better than when the British were here We proceed on the footing as we indicated even when leave to appeal was sought that the malignant facts of municipal callousness to public health and sanitation held proved by the Magistrate are true. What are the legal pleas to absolve the municipality from the court s directive under s. 133 Cr.P.C. That provision reads s. 133(1) whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidenceas he thinks fit considers a) that any unlawful obstruction or nuisance should be removed from any public place or from any way river or channel which is or may be lawfully used by the XX XX XX such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning possessing or controlling such building tent structure substance tank well or excavation or owning or possessing such animal or tree within a time to be fixed in the order i) to remove such obstruction or nuisance or XX XX XX iii) to prevent or stop the construction of such building or to alter the disposal of such substance or if he objects so to do to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order and show cause in the manner hereinafter provided. why the order should not be Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 So the guns of s. 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise it when the jurisdictional facts are present as here. "All power is a trust that we are accountable for its exercise that from the people and for the people all springs and all must exist."(i) Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise If the order is defied or ignored s. 188 I.P.C. comes into penal play 188. Whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order he is directed to obtain from a certain act or to take certain order with certain property in his possession or under his management disobeys such direction and if such disobedience causes or tends to cause danger to human life health or safety or causes or tends to cause a riot or affray shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees or There is no difficulty in locating who has the obligation to abate the public nuisance caused by absence of primary sanitary facilities. Section 123 which is mandatory reads 123. Duties of Council :In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely: b) cleansing public streets places and sewers and all places not being private property which are open to the enjoyment of the public whether such places are vested in the Council or not removing noxious vegetation and abating all public c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish The statutory setting being thus plain the municipality cannot extricate itself from its responsibility Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under s. 123 of the Act. This alibi made us issue notice to the State which is now represented by counsel Shri Gambhir before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise s. 123 of Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 the Act has no saving clause when the municipal council is penniless. Otherwise a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self defence a self created bankruptcy or perverted expenditure budget. That cannot be Section 133 Cr.P.C. is categoric although reads discretionary. Judicial discretion when facts for its exercise are present has a mandatory import. Therefore when the sub Divisional Magistrate Ratlam has before him information and evidence which disclose the existence of a public nuisance and on the materials placed he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public he shall act. Thus his judicial power shall passing through the procedural barrel fire upon the obstruction or nuisance triggered by the jurisdictional facts. The Magistrate s responsibility under s. 133 Cr.P.C. is to order removal of such nuisance within a time to be fixed in the order. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. Failure to comply with the direction will be visited with a punishment contemplated by s. 188 I.P.C. Therefore the Municipal Commissioner or other executive authority bound by the order under s. 133 Cr.P.C shall obey the direction because disobedience if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment shall be punished with simple imprisonment or fine as prescribed in the Section. The offence is aggravated if the disobedience tends to cause danger to human health or safety. The imperative tone of s. 133 Cr.P.C. read with the punitive temper of s. 188 I.P.C. make the prohibitory act a mandatory duty Although these two Codes are of ancient vintage the new social justice orientation imparted to them by the Constitution of India makes it a remedial weapon of versatile use. Social justice is due to the people and therefore the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under s. 133 Cr.P.C. In the exercise of such power the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by Art. 38 of the Constitution. This brings Indian public law in its processual branch in line with the statement of Prof. Kojima :(1) "the urgent need is to focus on the ordinary man one might say the little man..." "Access to Justice" by Cappelletti and B. Garth summarises the new change thus:(2) "The recognition of this urgent need reflects a fundamental change in the concept of "procedural justice"... The new attitude to procedural justice reflects what Professor Adolf Homburger has called "a radical change in the hierarchy of values served by civil procedure" the paramount concern is increasingly with "social justice " i.e. with finding procedures which are conducive to the pursuit and protection of the rights of ordinary people. While the implications of this change are dramatic for instance insofar as the role of the adjudicator is concerned it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained. "Access to justice" must encompass both forms of Public nuisance because of pollutants being discharged by big factories to the detriment of the poorer sections is a challenge to the social justice component of the rule of law. Likewise the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum dwellers to ease in the streets on the sly for a time and openly thereafter because under Nature s pressure bashfulness becomes a luxury and dignity a difficult art. A responsible Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies. Similarly providing drainage systems not pompous and attractive but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions makes this position clear In this view the Magistrate s approach appears to be impeccable although in places he seems to have been influenced by the fact that "cultured and educated people" live in this area and "New Road Ratlam" is a very important road and so many prosperous and educated persons are living on this road. In India one man one value is the democracy of remedies and rich or poor the law will call to order where people s rights are violated. What should also have been emphasised was the neglect of the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes especially with open drains heaps of dirt public excretion by humans for want of lavatories and slums nearby had created an intolerable situation for habitation. An order to abate the nuisance by taking affirmative action on a time bound basis is justified in the circumstances. The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. Therefore the court armed with the provisions of the two Codes and justified by the obligation under s. 123 of the Act must adventure into positive directions as it has done in the present case. Section 133 Cr.P.C. authorises the prescription of a time limit for carrying out the order. The same provision spells out the power to give specific directives. We see no reason to disagree with the order of the Magistrate The High Court has taken a correct view and followed the observations of this Court in Govind Singh v. Shanti Sarup(1) where it has been observed We are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health safety and convenience of the public at large the safer course would be to accept the view of the learned Magistrate who saw for himself the hazard resulting from the working of the bakery We agree with the High Court in rejecting the plea that the time specified in the order is unworkable. The learned judges have rightly said It is unfortunate that such contentions are raised in 1979 when these proceedings have been pending since 1972. If in seven year s time the Municipal Council intended to remedy such a small matter there would have been no difficulty at all. Apart from it so far as the directions are concerned the learned Magistrate it appears was reasonable. So far as direction No. 1 is concerned the learned Magistrate only expected the Municipal Council and the Town Improvement Trust to evolve a plan and to start planning about it within six months: the learned Magistrate has rightly not fixed the time limit within which that plan will be completed. Nothing more Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 reasonable could be said about direction No. 1 A strange plea was put forward by the Municipal Council before the High Court which was justly repelled viz. that the owners of houses had gone to that locality on their own choice with eyes open and therefore could not complain if human excreta was flowing dirt was stinking mosquitoes were multiplying and health was held hostage. A public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea Luckily no such contention was advanced before us. The request for further time for implementation of the Magistrate s order was turned down by the High Court since no specific time limit was accepted by the municipality for fulfillment of the directions. A doleful statement about the financial difficulties of the municipality and the assurance that construction of drains would be taken up as soon as possible had no meaning. The High Court observed Such assurances it appears are of no avail as unfortunately these proceedings for petty little things like clearing of dirty water closing the pits and repairing of drains have taken more than seven years and if these seven years are not sufficient to do the needful one could understand that by granting some more time it could not be The High Court was also right in rejecting the Additional Sessions Judge s recommendation to quash the Magistrate s order on the impression that s. 133 Cr.P.C. did not provide for enforcement of civic rights. Wherever there is a public nuisance the presence of s. 133 Cr.P.C. must be felt and any contrary opinion is contrary to the law. In short we have no hesitation in upholding the High Court s view of the law and affirmation of the Magistrate s order Before us the major endeavour of the municipal council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. Of course we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle it may well be that while upholding the order of the Magistrate we may be inclined to tailor the direction to make it workable. But first things first and we cannot consent to a value judgment where people s health is a low priority. Nevertheless we are willing to revise the order into a workable formula the implementation of which would be watch dogged by the court Three proposals have been put forward before us in regard to the estimated cost of the scheme as directed by the Magistrate. The Magistrate had not adverted to the actual cost of the scheme nor the reasonable time that would be taken to execute it. As stated earlier it is necessary to ascertain how far the scheme is feasible and how heavy the cost is likely to be. The Court must go further to frame a scheme and then fix time limits and even oversee the actual execution of the scheme in compliance with the court s order Three schemes placed before us together with tentative estimates of the costs have been looked into by us. Judges are laymen and cannot put on expert airs. That was why we allowed the Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 municipality and the respondents to produce before us schemes prepared by expert engineers so that we may modify the directions issued by the Magistrate suitably. Scheme A is stated to cost an estimated amount of Rs. 1.016 crores. The State Government has revised this proposal and brought down the cost. In our view what is important is to see that the worst aspects of the insanitary conditions are eliminated not that a showy scheme beyond the means of the municipality must be undertaken and half done. From that angle we approve scheme C which costs only around Rs. 6 lakhs. We fix a time limit of one year for completing execution of the work according to that scheme We further direct that the work shall be begun within two months from to day and the Magistrate shall inspect the progress of the work every three months broadly to be satisfied that the order is being implemented bona fide. Breaches will be visited with the penalty of s. 188 I.P.C We make the further supplementary directions which we specifically enjoin upon the municipal authority and the State Government to carry out 1. We direct the Ratlam Municipal Councilto take immediate action within its statutory powers to stop the effluents from the Alcohol Plant flowing into the street. The State Government also shall take action to stop the pollution. The Sub Divisional Magistrate will also use his power under s. 133 I.P.C. to abate the nuisance so caused. Industries cannot make profit at the expense of public health. Why has the Magistrate not pursued this aspect 2. The Municipal Council shall within six months from to day construct a sufficient number of public latrines for use by men and women separately provide water supply and scavenging service morning and evening so as to ensure sanitation. The Health Officer of the Municipality will furnish a report at the end of the six monthly term that the work has been completed. We need hardly say that the local people will be trained in using and keeping these toilets in clean condition. Conscious cooperation of the consumers is too important to be neglected by representative bodies 3. The State Government will give special instructions to the Malaria Eradication Wing to stop mosquito breeding in Ward 12. The Sub Divisional Magistrate will issue directions to the officer concerned to file a report before him to the effect that the work has been done in reasonable time 4. The municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary staff to keep the place free from accumulations of filth. After all what it lays out on prophylactic sanitation is a gain on its hospital budget 5. We have no hesitation in holding that if these directions are not complied with the Sub Divisional Magistrate will prosecute the officers responsible. Indeed this court will also consider action to punish for contempt in case of report by the Sub Divisional Magistrate of willful breach by any We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order. The State will realise that Art. 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties . The municipality also will slim its Indian Kanoon Municipal Council Ratlam vs Shri Vardhichand & Ors on 29 July 1980 budget on low priority items and elitist projects to use the savings on sanitation and public health. It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities. We expect all the wards to be benefited without litigation. The pressure of the judicial process expensive and dilatory is neither necessary nor desirable if responsible bodies are responsive to duties. Cappelletti holds good for India when he observes :(1) "Our judicial system has been aptly described as follows Admirable though it may be is at once slow and costly. It is a finished product of great beauty but entails an immense sacrifice of time money and talent This "beautiful" system is frequently a luxury it tends to give a high quality of justice only when for one reason or another parties can surmount the substantial barriers which it erects to most people and to many types of claims Why drive common people to public interest action Where Directive Principles have found statutory expression in Do s and Dont s the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new enforcement dimension not merely through some of the provisions of the Criminal Procedure Codebut also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment corporate and personal We dismiss this petition subject to the earlier mentioned modifications N.V.K. Petition dismissed Indian Kanoon

Filing of FIR after the raid cannot be said to be error in procedure – Karnataka High Court

In the case of Tasleem N.P Vs State of Karnataka [CRL.P. No. 3073/2020] Karnataka High Court held that on receiving a secret information the priority of the police is to arrest the accused and not file FIR. All the petitioners have been implicated in Cr.No. 110/2020 in relation to offences punishable under sections 8(c), 22(b) and 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985. Police Inspector had received a credible information that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances. Immediately the Police Inspector conducted a raid on that house, seized the substances and arrested those persons. The petitioners in all the cases have argued that the police did not seize any contraband substance from the conscious possession of the petitioners. The prosecution has not yet obtained the qualitative and quantitative report from the FSL, it is mandatory that according to Standing Instruction 1/1988, the report must be obtained within 15 days from the date of sending the narcotic drug to the FSL. There is no compliance of Standing Instructions. For this reason, section 37 of the NDPS Act cannot be invoked. They also argued that the police officer did not register FIR soon after receiving the credible information. They proceeded to the spot to conduct search without registering FIR. Therefore, the whole seizure is bad in law and for this reason, the seizure panchanama cannot be looked into for any purpose. The respondent-state argued that there is no infraction of procedure. The respondent submitted that contraband substances were found inside the house and therefore the burden is on the accused to prove that they were not aware of the contents of the bag. It was further submitted that the seized substance was sent to FSL within time and the reason for delay in receiving the report is due to restriction imposed for controlling infectious pandemic Covid-19. Reference was made to the judgments of Ben Okoro vs State of Karnataka [Crl. P. No. 8644/2017] and Kelsi Katte Mahammed Shakir vs The Superintendent of Customs, Air Intelligence Unit [Criminal Petition No. 5402/2018]. Therefore, court concluded that if the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating existence of prima facie materials about the involvement of the petitioners in commission of offences. Court observed that, “If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF OCTOBER 2020 THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL PETITION No.3073 OF 2020 CRIMINAL PETITION No. 3213 OF 2020 CRIMINAL PETITION No.3383 OF 2020 IN CRL.P. No. 3073 2020 Tasleem N.P @ Muhammed Thaslim N P S o Hameed K M Aged about 29 years No G1 Sri Sai Residency Mahadeswarapuram BTM IInd Stage Bengaluru 560 076. Permanent Address Nafeesa Mazil Ettikkulam Ramanthali Kannur Kerala 670 308. By Smt. Sofia Advocate for Sri. Kamaluddin Advocate) AND State of Karnataka By Hulimavu Nagar Police Station Represented By State Public Prosecutor …Petitioner WWW.LIVELAW.IN 2 High Court of Karnataka Bengaluru 560 001. By Smt. K.P. Yashodha HCGP) …Respondent This Criminal Petition is filed under Section 439 Cr.P.C. praying to enlarge the petitioner on bail Cr.No.110 2020 of Hulumavu Police Station Bengaluru City for the offence punishable under Sections 20(b) 8(c) 22(c) of NDPS ACT. IN CRL.P. No. 3213 2020 Haseeb K.V. S o Muhammad Ali Aged about 25 years Apricot Shop Gottiere Banerghatta Road Bengaluru 560 093. Permanent Address Veettil Mattool North Kannur Kerala 670 325 By Smt. Sofia Advocate for Sri. Kamaluddin Advocate) AND State of Karnataka By Hulimavu Nagar Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru 560 001. By Smt. K.P. Yashodha HCGP) …Petitioner …Respondent WWW.LIVELAW.IN 3 This Criminal Petition is filed under Section 439 Cr.P.C. playing to enlarge the petitioner on bail Cr.No.110 2020 of Hulumavu Police Station Bengaluru City for the offence punishable under Sections 20(b) 8(c) 22(c) of NDPS ACT. IN CRL.P. No. 3383 2020 Rasique Ali P. S o Ismalutty T. Aged about 25 years R o Parambil House Koolimadu Pazhur P.O Kozhikode Kerala 673 661. …Petitioner By Smt. Vishruti Vijay Advocate for Sri. Laksha Kalappa B. Advocate) AND State of Karnataka By Hulimavu Police Station Meenakshi Temple Road Main Bus Stop Hulimavu Bengaluru Karnataka 560 076. Rep by SPP High Court Building Bengaluru 560001. By Smt. K.P. Yashodha HCGP) …Respondent This Criminal Petition is filed under Section 439 Cr.P.C praying to enlarge the petitioner on bail Cr.No.110 2020 of Hulimavu Police Station Bengaluru City for the offence punishable under Sections 20(b) 8(c) 22(b) 22(c) of NDPS ACT. These Criminal Petitions having been heard and reserved on 23.09.2020 coming on for pronouncement this WWW.LIVELAW.IN 4 day through video conferencing the court pronounced the These three criminal petitions are disposed of by a common order as they arise from same crime number. The petitioner in Crl.P.No. 3073 2020 is accused No.1. Accused No.4 is the petitioner in Crl.P.No. 3213 2020. The petitioner in Crl.P.No. 3383 2020 is accused No.5. All these petitioners have been implicated in Cr.No. 110 2020 in relation to offences punishable under sections 8(c) 22(b) and 22(c) of Narcotic Drugs and Psychotropic Substances Act 1985. 2. Heard Smt. Sofia and Smt. Vishruti Vijay learned counsel appearing the petitioners and Smt. K.P.Yashodha learned HCGP for all the respondents. 3. The prosecution case is that the Police Inspector received credible information on 11.6.2020 that about six persons living in a house bearing No. 65 Kapila Cross Road Behind Maruthi Dental College Vinayaka Layout Hulimavu WWW.LIVELAW.IN 5 were possessing narcotic substances such as ganja MDMA ecstasy tablets and LSD strips and they were about to sell those substances. the Police conducted a raid on that house seized the substances and arrested those persons. 4. Learned counsel for the petitioners in all the cases have argued that the police did not seize any contraband substance from the conscious possession of the petitioners. The prosecution has not yet obtained the qualitative and quantitative report from the FSL it is mandatory that according to Standing Instruction 1 1988 the report must be obtained within 15 days from the date of sending the narcotic drug to the FSL. There is no compliance of Standing Instructions. For this reason section 37 of the NDPS Act cannot be invoked. They also argued that the police officer did not register FIR soon after receiving the credible information. They proceeded to the spot to conduct search without registering FIR. Therefore the whole seizure is bad in law and for this reason the seizure panchanama cannot be looked into for any purpose. Relying upon WWW.LIVELAW.IN 6 number of authorities in support of their case they submitted that all the petitions must be allowed and the petitioners enlarged on bail. 5. Learned High Court Government Pleader argued that there is no infraction of procedure. The petitioners and other accused were also staying in the house where the raid was conducted. The contraband substances were found inside the house and therefore the burden is on the accused to prove that they were not aware of the contents of the bag. She referred to section 35 of the NDPS Act. She also submitted that the police officer has followed every procedure and the same is disclosed in the seizure mahazar. The seizure was according to law. She further submitted that the seized substance was sent to FSL within time and the reason for delay in receiving the report is due to for controlling infectious pandemic Covid 19. Moreover at the stage of deciding the bail application this aspect cannot be given so much of importance because in the seizure mahazar it is clearly stated about the quantity and the nature of the substances WWW.LIVELAW.IN 7 seized from the possession of the accused. She referred to the order passed by the co ordinate bench of this court in Crl. P. 1298 2020 to argue that non compliance of the Standing Instructions is not a ground for granting bail. She submitted that the coordinate bench refused bail by referring to the judgment of the Supreme Court in the case of Superintendent Narcotics Control Bureau Chennai vs R. Paulsamy 9 SCC 549]. She argued for dismissing the petitions. 6. Since the counsel for the petitioners highlighted the point that the contraband substances were not seized from the conscious possession of the accused it is necessary to state that the word ‘conscious’ is related with the mental state of a person and his knowledge about something. It does not take the attributes of physical possession. If a bag containing contraband is found in the house of the accused it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents the burden is on him WWW.LIVELAW.IN 8 to establish it. Thus seen the learned counsel for the petitioners have made a futile argument that there was no seizure from the conscious possession of the petitioners. 7. The seizure panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to section 42(1) of the NDPS Act. Panchanama also shows search being made in the presence of a gazetted officer. Therefore there is due compliance of all the requirements envisaged under NDPS Act. 8. Reference may be made to the judgments cited by learned counsel for the petitioners. In Ben Okoro vs State of Karnataka bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per Standing Instruction No. 1 1988. In the case of Kelsi Katte Mahammed Shakir vs The Superintendent of Customs Air Intelligence Unit also this court was inclined to grant bail noticing the fact WWW.LIVELAW.IN 9 that the FSL report was not obtained within fifteen days. But in Crl.P.No.1298 2020 the judgment of the Supreme Court in Paulsamy has been referred to hold that it is too early to take into account all the formalities to be complied with for the purpose of deciding a bail application. Therefore if the investigation officer could not obtain the FSL report within 15 days it is not so significant that too when there are other materials indicating existence of prima facie materials about the involvement of the petitioners in commission of offences. 9. Learned counsel for the petitioners have placed reliance on the judgment in the case of Lalita Kumari vs Government of Uttar Pradesh and Others 2 SCC 1] in support of their argument that the seizure panchanama conducted by the appellants without registration of FIR was illegal. 10. Examined whether the ratio in Lalita Kumari supra) is applicable in a situation where a police officer only WWW.LIVELAW.IN 10 receives a credible or secret information about an offence which is about to be committed I may with great respect observe that the primary duty of police is to prevent an offence from happening immediately after receiving the information a police officer has to proceed to spot for averting the crime and taking such other measures as the situation demands. In Lalita Kumari the focus is on the duty of Station House Officer once he receives information about commission of offence that means the information should disclose a crime being already committed. And in such a situation if the crime is cognizable the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report it may be treated as FIR for further course of action. Sometimes offences do take place in the presence of the police officer. In WWW.LIVELAW.IN 11 such a situation his first duty is to arrest the accused and collect the evidence and not registration of FIR. 11. In the case on hand what the police officer received was a report about likelihood of offences under NDPS Act being committed the informant only suspected possession of contraband substances regarding which no FIR could be registered without ascertaining the truth in the information. The seizure panchanama discloses that the petitioners and other accused possessed contraband substance for the purpose of selling them. He seized the substances and made a report of the same. No error can be found in it. 12. The learned counsel for the petitioners have placed reliance on some decisions of the Supreme Court namely Gangadhar @ Gangaram vs State of Madhya Pradesh Narcotics Control Bureau Jodhpur vs Murlidhar Soni and Others 2004) 5 SCC 151] and Gian Chand and Others vs State of Haryana 14 SCC 420]. All these decisions WWW.LIVELAW.IN 12 cannot be made applicable for they are all post conviction appeals the yardstick to be applied for deciding a bail application is not same as assessing the whole case after conclusion of trial. 13. The High Court of Delhi may have granted bail to the accused as may be seen in its decisions in the case of Harpreet Singh Bahad vs DRI and Kamaljeet Singh vs H.K.Pandey Intelligence Officer NCB that the counsel for petitioner in Crl. P. No. 3383 2020 has cited. In these cases the decision to grant bail was based on given circumstances. Here in these petitions there are prima materials against the petitioner section 37 of the NDPS Act is very much attracted. Therefore the petitions are dismissed. Sd JUDGE

Leave Petition was granted to the offender charged under Sec 279 & 338 of IPC: Supreme Court

Sec 279 & 338 deal with punishment to whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person. A single-judge bench comprising of Justice Ashok Bhusan adjudicating in the matter of Surendran v. Sub-Inspector of Police(CRIMINAL APPEAL NO. 536 OF 2021) dealt with an issue of whether to accept the appeal of the Appellant in the present case or not. In the present case, The Appellant has filed an appeal against the judgment of the High Court dated 01.09.2015 dismissing the Criminal Revision filed by the appellant challenging his conviction and sentence under Section 279, 337, and 338 IPC. The appellant was a bus driver and has caused an accident on 16.02.1995 in which the car driver of KL 10B 5634 was injured. The appellant was charged with offense under Sections 279, 337 and 338 IPC. The Judicial First Class Magistrate passed a judgment dated 28.04.1999 convicted the accused under Section 279 IPC and 338 IPC and sentence him to undergo six months imprisonment and a fine of Rs.500/- was imposed, in default to undergo simple imprisonment for one month under Section 337 IPC. An appeal was filed by the appellant which was dismissed by the learned Sessions Judge by judgment dated 29.05.2003. Criminal Revision was filed in the High Court challenging the judgment of the learned Sessions Judge which Criminal Revision petition has been dismissed by the High Court the impugned judgment dated 01.09.2015. It was contended by the Appellant that he is the sole bread owner of his poor family consisting of 4 children and his wife. Also, it was submitted that if the appellant is sent to jail for more than 21 years, his family will suffer irreparable injury. The Appellant relied upon the judgment of Prakash Chandra Agnihotri v. State of MP & A.P. Raju v. the State of Orissa passed by the Supreme court and the Court also supports his submissions.  In the case of Prakash Chandra Agnihotri, the accused was convicted and sentenced to six months under Section 304A. This Court converted the sentence of imprisonment into a fine of Rs.500/-. The Court was of the view that it would be harsh to send 4 the appellant to the Jail after 18 years of the occurrence. The incident occurred on 16.02.1995 i.e. more than 26 years ago. It appellant was granted bail and The Trial Court after looking into the evidence has convicted them under Section 279, 338 and awarded a sentence of imprisonment of six months, and further sentenced to pay a fine of Rs.500/- under Section 337. The court finds no error in the judgment passed by the Trial court and the conviction was affirmed. However, looking at the facts and circumstances of the present case especially the fact that 26 years have elapsed from the incident, the court decided to substitute the sentence of six months imprisonment under Section 279 and 338 into a fine of Rs.1000/- each.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 536 OF 2021 Special Leave PetitionNo.59816 ...APPELLANT(S SUB INSPECTOR OF POLICE ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J This appeal has been filed against the judgment of the High Court dated 01.09.2015 dismissing the Criminal Revision filed by the appellant challenging his conviction and sentence under Section 279 337 and 338 The appellant a bus driver while driving bus No.KL7D 4770 caused an accident on 16.02.1995 in which car driver of KL 10B 5634 was injured. The appellant was charged with offence under Sections 279 337 and 338 IPC. The learned Judicial First Class Magistrate vide his judgment dated 28.04.1999 convicted the accused under Section 279 IPC and 338 IPC and sentence him to undergo six months imprisonment and fine of Rs.500 was imposed in default to undergo simple imprisonment for one month under Section 337 IPC An appeal was filed by the appellant which was dismissed by the learned Sessions Judge by judgment dated 29.05.2003. Criminal Revision was filed in the High Court challenging the judgment of the learned Sessions Judge which Criminal Revision petition has been dismissed by the High Court vide the impugned judgment dated 01.09.2015. This Court on 01.08.2016 issued notice only on the question of sentence. Service of notice is complete but no one has appeared for respondent. Learned Counsel for the appellant contends that the appellant is sole bread earning member of a poor family consisting of four children and his wife. It is submitted that the appellant if sent to jail after more than 21 years will suffer irreparable injury. Learned counsel for the appellant has placed reliance on judgment of this Court in A.P. Raju versus State of Orissa 1995 Supp.(2) SCC 385 and Prakash Chandra Agnihotri versus State of M.P. Supp SCC 764. We have considered the submissions of learned counsel for the appellant and have perused the record. The judgment of this Court in Prakash Chandra Agnihotrias relied by learned counsel for the appellant does support his submissions. In the above case the accused was convicted and sentenced for six months under Section 304A. This Court converted the sentence of imprisonment into fine of Rs.500 . The Court was of the view that it would be harsh to send the appellant to the Jail after 18 years of the occurrence. Following was observed in paragraph 1 of the judgment: “1. The Courts below have maintained the conviction of the appellant under Section 304 A Indian Penal Code. We have gone through the judgments of courts below and we find no infirmity therein We uphold the conviction. The occurrence took place on February 18 1972. The appellant has throughout been on bail He has been sentenced to six months rigorous imprisonment and a fine of Rs.250. We are of the view that it would be rather harsh to send the appellant to jail after 18 years of the occurrence The ends of justice would be met if the appellant is asked to pay a fine of Rs.2000 . The sentence is thus converted to a fine of Rs.2000 . On realisation the amount shall be paid to the family of the deceased girl. The amount be deposited with the Trial Court within two months from today and the trial court shall disburse the same to the parents of the girl and in absence of the parents to the next of kin of the girl. In default of the payment of fine the appellant shall undergo imprisonment for six months.” 10. The incident took place on 16.02.1995 i.e. more than 26 years ago. It appears that appellant was throughout on the bail. The Trial Court after marshalling the evidence has recorded the conviction under Section 279 338 and awarded sentence of imprisonment of six months and further sentenced to pay a fine of Rs.500 under Section 337. 11. We do not find any error in conviction recorded by the Trial Court. The conviction of appellant is affirmed however looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000 each whereas sentence of fine under Section 337 IPC is maintained. 12. The accused may deposit the fine of Rs.1000+1000 i.e. Rs.2000 within a period of one month in the Trial Court. The judgments of the Courts below are modified to the above extent. The appeal is partly (VINEET SARAN (M.R.SHAH NEW DELHI JUNE 30 2021

Mere allegation of love affair won’t serve as a ground for acquittal: High Court Chhattisgarh

Mere allegation of love affair without supporting evidence where no person has seen the lady in a compromising position, won’t serve as a ground for acquittal to the perpetrator. A single-judge bench comprising of Justice Arvind Singh Chandel adjudicating in the matter of Mukku @ Mukesh Yadav vs. The State of Chhattisgarh (CRIMINAL APPEAL No.812 of 2013) dealt with an issue of whether to grant acquittal to the Appellant. In the present case, the appellant preferred an appeal against the impugned judgement dated 21.08.2013 where he was convicted u/s 376 & 450 IPC. The Appellant is a married person having two children and the prosecutrix is a major lady having two children. The prosecution around 9:30 asserted that when she was sleeping in her house with her 8-year-old child, the Appellant knocked on the door of her house and barged inside the house, and committed sexual intercourse with the prosecution. Immediately, after the incident, the prosecutrix immediately informed the PW-2 and also narrated the whole incident to her husband. The prosecution filed a report in the Police station and she was medically examined. Statements were recorded and after completion of the investigation, a charge sheet was formed. Statement of Appellant was also recorded and he pleaded that he was innocent and false implications have been made against him, but in the process of trial, he was convicted. The appellant in his appeal submits that he is innocent and has been falsely implicated in the present case. There is a lack of evidence in support of the offences charged against him. Also, it was submitted that the court failed to consider the statement of defence witness, which stated that there was a love affair between the prosecutrix and appellant since last 6-7 year and contended that the circumstances clearly shows that the prosecutrix was a consenting party. After examining all the witnesses, the court held that” There is also no such fact available in this case which shows that husband of the prosecutrix or any other person has seen her in a compromising position, then only she had made a complaint. Therefore, no such substance is available in the statement of the appellant where he has stated that they were having a love relationship and the prosecutrix was the consenting party in the alleged act.”

HIGH COURT OF CHHATTISGARH BILASPUR CRA No. 8113 • Mukku @ Mukesh Yadav S o Shankar Lal Yadav Aged About 29 Years R o Lodhipara Sarkanda Near Gate of Agriculture Form P.S. Sarkanda Tah.Civil And Rev. Distt. Bilaspur C.G • State of Chhattisgarh Through Police Station A.J.K. Bilaspur C.G Appellant Respondent Shri Ravindra Sharma Advocate For State Respondent Shri Ghanshyam Patel G.A Hon ble Shri Justice Arvind Singh Chandel Judgment on Board This appeal has been preferred against the impugned judgment dated 21.8.2013 passed in Special S.T. No.33 2012 by the Special Sessions Judge Bilaspur District Bilaspur wherein appellant has been convicted and sentenced as under U s 376 of the I.P.C R.I. for 10 years and fine of Rs.2 000 with default stipulations U s 450 of the I.P.C R.I. for 5 years and fine of Rs.2 000 with default stipulations Both sentences to run concurrently In the present case prosecutrix is a major lady having two children. Appellant herein is also a married person having two children According to the case of the prosecution on 26.08.2012 at around 9:30 PM when prosecutrix was sleeping in her house with her 8 years old child at that time appellant knocked the door of her house. When she opened the door appellant forcefully entered in her house and committed sexual intercourse with her. Immediately after the incident she narrated the entire story to Rahin KaiwartSavita Kenwat and Gautam. When husband of the prosecutrix came to the house she narrated the whole incident to him also. Thereafter in the night itself prosecutrix lodged a report vide Ex.P 1 in the police station Prosecutrix was medically examined by Dr. Neelima Sharma PW 5). Her report is Ex.P 7. Statement of the prosecutrix and other witnesses were recorded under Section 161 of the Cr.P.C. After completion of the investigation a charge sheet was filed. To prove the guilt of the accused appellant prosecution has examined as many as 10 witnesses. One defence witness namely Rajkumar Kashyapin her Court Statement has categorically deposed that on the date of incident she was sleeping in her house with her 8 years old child at that time appellant knocked the door and when she opened the door appellant forcefully entered inside the house and committed forcible sexual intercourse with her. According to this witness immediately after the incident she narrated the entire incident to her neighbours namely Savita Gautam and Rahinbai. When her husband namely Puroshottam Singhreached home then she narrated the entire incident to him also. Smt. Rahin Kaiwarthas supported the above statement of the prosecutrix. Smt. Rahin Kaiwart has categorically stated that just after the alleged incident prosecutrix came to her and narrated the entire story to her. At that time prosecutrix was weeping Puroshottam Singhalso stated that when he reached house his wifenarrated the entire incident to him. In paragraph 11 and 12 of cross examination of the prosecutrix appellant has admitted that he entered to the house of the prosecutrix and made physical relationship with the prosecutrix. Though it was the defence of appellant that there was love relationship between him and prosecutrix and he made physical relationship with prosecutrix with her consent. But prosecutrix denied the submissions made by the appellant in this regard during her cross examination. Immediately after the the alleged incident prosecutrix narrated the incident to Rahin Kaiwartin weeping state. There is also no such fact available in this case which shows that husband of the prosecutrix or any other person has seen her in a compromising position then only she had made complaint Therefore no such substance is available in the statement of the appellant where he has stated that they were having love relationship and prosecutrix was the consenting party in the alleged act On a minute examination of the evidence on record it is clear that there is sufficient evidence against the appellant to hold him guilty. In my considered view the trial Court has rightly convicted the appellant 9. With regard to the sentence of the appellant in the present case appellant is in custody since 27.08.2012 i.e. he has completed about more than 9 years in jail. Appellant is also a married person having two children. Further considering the family condition and detention period of the appellant and the fact that he is facing the lis since 2013 I am of the view that the ends of justice would be met if while upholding the conviction imposed upon the Appellant the jail sentenced awarded to him is reduced to the period already undergone by him 10. Consequently the appeal is partly allowed. The conviction of the Appellant under the aforementioned Section is affirmed and he is sentenced to the period already undergone by him. The fine sentence is affirmed. 11. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance (Arvind Singh Chandel Sd Judge

Transfer directed by SC under S. 406 of Code of Criminal Procedure when expedient for ends of justice: Supreme Court

In a transfer petition of a criminal case, the parties filed the same under section  406 of the Code of Criminal Procedure before the Supreme Court. While deciding the same, the court held that such a petition can be directed under section 406 of the Code only when it is expedient for the ends of justice. This judgment was passed in the case of Rajkumar Sabu vs. M/S Sabu Trade Private Limited [T.P.(Crl.) No. 17/2021] by a Double Bench consisting of Hon’ble Justice Aniruddha Bose and Hon’ble Justice Krishna Murari. The present proceeding arose from the case which was instituted by the respondents in the Judicial Magistrate Court IV (Salem Court) under section 156(3) of the Code of Criminal Procedure (Cr.P.C.). the petitioner on the other hand filed the present application under section 406 of Cr.P.C. to transfer the case to the Court of Chief Judicial Magistrate, New Delhi. The respondent alleged that the petitioner overused the trademark SACHAMOTI with regards to the sago made by him. The Respondent contended that such use is illegal and unauthorized and thus claimed proprietary rights over the same. Once the police investigation was done, The Judicial Magistrate took cognizance of the alleged offense under section 420 of the IPC and section 103 of the Trade Marks Act. although the allegations were against another apart from the petitioner, the transfer petition was brought only by the petitioner following which the other individual filed an application for intervention supporting the petitioner’s case for transfer. At the Salem Court, the examination in chief of three prosecution witnesses had been completed and the date for the next hearing was also given. The petitioner, intervenor, and Gopal Sabu were brothers. In the year 2016, there were litigation issues between the petitioner and Gopal Sabu, where the petitioner alleged infringement and passing off of the same trademark by the respondent. Consequently, suits were filed by the Respondent in Salem, in Indore which was rejected, and In the High Court of Calcutta which was stayed but the Supreme Court ordered the respondent to withdraw the same. The petitioner contended that there is an overlap of points between the criminal case and the one being tried by the Delhi High Court. The petitioner also presented the issue of language, distance, and the probability of a biased investigation due to the respondent’s influence in Salem; in order to substantiate the transfer of cases. The Respondent, on the other hand, contended the petitioner in approaching the court for transfer of criminal case and the mix up of civil suit and criminal case ought not to take place. The Supreme Court after hearing both the parties observed that the overlap of points cannot be a valid ground for admissibility of transfer petition. It went on to observe that criminal case shall have to proceed in the court of the judicial magistrate and the question of if the civil and criminal case should continue together does not fall within the ambit of Transfer petition. Since there was no evidence produced before the court regarding the influence of the respondent in Salem, the ground was rejected. The Supreme court held that the transfer petition under Section 406 of Cr.P.C can only be used sparingly and it cannot be exercised on the mere apprehension of one party that justice would not be done. The Court held that a case can be entertained under section 406 only if such a transfer is “expedient for the ends of justice” and the same goes beyond factors of mere convenience such as language and distance.

REPORTABLE IN THE CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITIONNO. 17 OF 2021 ..PETITIONER M S SABU TRADE PRIVATE LIMITED JUDGMENT ANIRUDDHA BOSE J The present proceeding arises out of a case instituted by the respondents Sabu Trade Private Limited invoking jurisdiction of the Court of Judicial Magistrate No. IV Salemunder Section 156of the Code of Criminal Procedure 1973. By filing the present application under Section 406 of the 1973 Code the petitioner wants the case to be transferred to the Court of the Chief Judicial Magistrate Patiala House Court New Delhi. The allegation of the respondents in the said case is over use of the trade mark SACHAMOTI in respect of sago or sabudana by Rajkumar Sabu the petitioner). According to the respondents such use is illegal and unauthorised. The Respondents claim proprietary right over the said trade mark. The complaint was instituted on 22nd May 2017. The Judicial Magistrate Salemhad required the police authorities to conduct a thorough enquiry with regard to genuineness of the private complaint and a report was filed by the concerned Inspector of Police. The case was registered as CC No. 82 2018 on 5th April 2018. The Judicial Magistrate took cognizance of the alleged offences under Sections 420 of the Indian Penal Code and 103 of the Trade Marks Act 1999 and issued summons to the petitioner. The proceeding before the Court at Salem was instituted by the respondents represented by their Managing Director Gopal 2. Allegations were primarily directed against the petitioner in the complaint. But another individual Shiv Narayan Sabu was also implicated in the proceeding before the Salem Court. The Transfer Petition however has been brought by Raj Kumar Sabu alone. Subsequently an application for intervention has been filed by said Shiv Narayan Sabu. He supports the petitioner’s case for transfer. In the intervention application the grounds on which transfer is sought by the petitioner has been broadly repeated. Said Shiv Narayan Sabu has shown sufficient interest to intervene in this proceeding and I allow his application for intervention. Hence the intervenor’s cause shall be dealt simultaneously with the petitioner’s case. The intervenor has also alleged that he has been unnecessarily dragged into the dispute. But in this proceeding that grievance of the intervenor cannot be considered. I am to examine the plea for transfer of the aforesaid criminal case only Before the Salem Court examination in chief of three prosecution witnesses have been completed on 2nd March 2019 5th April 2019 and 27th May 2019 No. 7616. Gopal Sabu made complaints to the police authorities at Salem in the months of July and August 2016 seeking action against the petitioner on the allegation of counterfeiting the same brand referred to in the complaints inter alia as property mark. These complaints were founded also on certain other counts. In the suit instituted in the Delhi High Court counter claim was lodged by the respondents. 4. The respondents had filed a suit for declaration and injunction to prevent use of the said trade mark in the Court of District Judge Salem which was registered as OS No 148 of 2016. Another suit was filed on 19th August 2016 in the District Court of Indore but this suit had been rejected on 16th November 2016. There was also a suit by the respondents in the High Court at Calcutta registered as C.S. No. 1916. Proceedings in this suit however was initially stayed in view of pendency of the suit in Delhi High Court and subsequently this Court had directed the respondents to withdraw this suit. Both the petitioner and the respondents had filed two transfer petitions in this Court before the present one. These two transfer petitions were registered as being T.P.(C)No. 1320 of 2018 instituted by the Petitioner) and T.P.(C)No 1676 of 2017 for transferring the opponent’s suits to the Courts in which the respective parties had filed their suits. These transfer petitions were heard together by this Court and in a common order passed on 18th July 2018 a Bench comprising of three Hon’ble Judges of this Court was pleased to direct: “(i) OS No. 1416 titled as Sabu Trade Pvt. Ltd. v. Rajkumar Sabu & Anr. pending before the District Court Salem be transferred to the Delhi High Court for adjudication along with CS COMM) No. 761 of 2016 titled as Mr Rajkumar Sabu v. Ms. Kaushalya Devi Sabu & Ors. pending before the Delhi High ii) The injunction granted by the Delhi High Court vide order dated 10.06.2016 and confirmed by order dated 22.01.2019 is hereby set aside. The interim application for temporary injunction filed in CS No. 761 of 2016 stands revived before the Single Judge of the Delhi High Court and may be heard on merits. FAO(OS) No. 69 2019 FAO(OS)No. 72 2019 and FAONo. 73 2019 filed before the Division Bench of the High Court as against the order dated 22.01.2019 stand disposed of. iii) The order of the Madras High Court dated 07.01.2019 in CMA No. 8418 and CMP No. 6995 of 2018 as also the order dated 02.02.2018 passed by the Principal District Court Salem are set aside. The application for injunction filed in OS No. 148 of 2016 by Sabu Trade Pvt. Ltd. No. 7616 mentioned above. iv) The learned Single Judge of the Delhi High Court is requested to decide both the abovementioned applications for injunction in the respective suits within three months v) In view of the clubbing of OS No 1416 titled as Sabu Trade Pvt Ltd. v. Rajkumar Sabu & Anr. pending before the District Court Salem along with CSNo. 7616 titled as Mr. Rajkumar Sabu v. Ms. Kaushalya Devi Sabu & Ors. pending before the Delhi High Court and the fact that C.S.No.195 2016 pending before the Calcutta High Court is identical to the one transferred above we think it is unnecessary for the parties to litigate and pursue the matter pending before the Calcutta High Court. Accordingly we direct the petitioner to withdraw C.S.No.195 2016. vi) We make it clear that we have not expressed any opinion on the merits of the matter and the applications for injunction shall be decided by the High Court on their own merit uninfluenced by any observations made by either this Court or any High Court regarding this 5. Now the petitioner wants the criminal case pending in the Salem Court to be transferred to the Patiala House Court New Delhi. Two main grounds have been urged on behalf of the petitioner in support of his plea argued by Mr. S. Guru Krishnakumar learned Senior Advocate. One is that the points involved in the criminal case are similar to the suits which are being tried and determined by the Delhi High Court. The other ground taken is that the proceeding in the Salem Court is being conducted in Tamil which the petitioner does not understand. It has also been urged on behalf of the petitioner that it would be more convenient for the parties to conduct the proceeding in New Delhi as the civil suits are being heard in the Delhi High Court only. The petitioner also complains about distance of over 2000 kilometres between Salem and petitioner’s own place of residence at Indore and alleges that there is no direct connectivity between these two places. The authorities relied upon by the petitioner are i) Sri Jayendra Saraswathy SwamigalT.N vs. State of Tamil Nadu & Ors. 8 SCC 771] and Mrudul M. Damle & Anr. vs. Central Bureau of Investigation New Delhi 5 SCC 706]. It is also asserted on behalf of the petitioner that the respondents have influence in Salem and he has apprehension that he would not get impartial enquiry investigation trial at Salem. 6. Mr. Gopal Sankarnarayan learned Senior Advocate has highlighted in course of his submissions on behalf of the respondent the delay in approaching this Court seeking transfer of the criminal case. As per his submission proceeding was registered on 5th April 2018 and has made substantial progress The complaint has reached the stage of cross examination of the complainants’ witnesses by the petitioner. The transfer petition was filed on 12th January 2021. He also points out that personal appearance of the petitioner during trial stood dispensed with by an order of the Madras High Court. It is also his submission that the case pending in the Salem Court has criminal elements which ought not to be mixed up with the civil suit. Relying on a judgment of a Coordinate Bench in the case of Umesh Kumar Sharma vs. State of Uttarakhand and an earlier decision of this Court in the case of Gurcharan Dass Chadha vs. State of Rajasthan 2 SCR 678] he has argued that to sustain allegation of lack of neutrality in trial as a ground for transfer credible materials will have to be brought before the Court. His argument is that there is no such material that would justify transfer on this ground. Certain decisions have been referred to on behalf of the respondents on the point that civil and criminal proceedings can go on simultaneously in relation to similar transactions. But I do not consider it necessary to deal with these authorities as that point does not arise in the present proceeding which is a Transfer 7. I shall proceed on the basis that the suits being heard by the Delhi High Court would have points which could overlap with those involved in the criminal case pending in the Salem Court. But that very fact by itself in my view would not justify transfer of the said case. Substantial progress has been made in the said complaint before the Salem Court. So far as the subject criminal case is concerned the ground of overlapping points in any event cannot justify the petitioner’s case for transfer as even if the petition is allowed the criminal case shall have to proceed in the Court of Judicial Magistrate and not in the High Court where the civil suits are being heard. Two different judicial fora would be hearing the civil cases and the criminal case Whether the civil cases and the criminal case would continue together or not is not a question which falls for determination in this Transfer Petition. Moreover it does not appear that earlier any complaint was made about the proceeding being carried on at Salem. In fact the petitioner had applied for quashing the complaint before the Madras High Court but at that point of time no proceeding was taken out for transferring the criminal complaint Moreover on 8th June 2018 the petitioner had appeared before the Salem Court and received copy of the criminal complaint. This has been stated in the list of dates forming part of the Transfer Petition. At that point of time the two earlier Transfer Petitions were pending Those two petitions were disposed of on 18th July 2018. The petitioner does not appear to have had expressed their grievances on the basis of which this petition has been filed at that point of time. Barring claims being made by the petitioner of the respondents being influential person in Salem no material has been produced to demonstrate that such perceived influence can impair a neutral trial These allegations inter alia appear in an additional affidavit filed on behalf of the petitioner affirmed on 26th February 2021. The claims of the petitioner do not match the level of unjust influence exerted on the defence in the case of Sri Jayendra Saraswathy Swamigal supra) on the basis of which the transfer petition was allowed. In that case this Court found the prosecuting authorities were harassing the defence team of lawyers and there were materials demonstrated by the petitioner to show that the State machinery was going out of its way in preventing the accused from defending himself. The petitioner’s case of possible tainted trial is unfounded and does not meet the standard laid down in the cases of Gurucharan Dass Chadhaand Umesh Kumar Sharma while selecting the Court to which the case was to be transferred. But language was not the criteria based on which transfer of the case was directed. I have briefly discussed earlier the reason for which transfer of the case was directed. The language factor weighed with this Court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other 9. Ordinarily if a Court has jurisdiction to hear a case the case ought to proceed in that Court only. The proceeding in the Salem Court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in Section 406 of the 1973 Code. Jurisdiction under the aforesaid provision ought to be sparingly used as held in the case of Nahar Singh Yadav & Anr. vs. Union of India & Ors 2011) 1 SCC 307]. Such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case. This was broadly the ratio in the case of Gurcharan Dass Chadha 4 SCC 217] it was held: “46. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of the Code of Criminal Procedure. Often either the complainant or the accused have to travel across an entire State to attend to criminal proceedings before a jurisdictional court. In some cases to reach the venue of the trial court a complainant or an accused may have to travel across several States. Likewise witnesses too may also have to travel long distances in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another on the basis of time taken to travel to the court conducting the criminal trial is accepted the provisions contained in the Criminal procedure Code earmarking the courts having jurisdiction to try cases would be rendered meaningless. Convenience inconsequential so far as the mandate of law is concerned. The instant plea therefore deserves 11. For these reasons I dismiss the present transfer petition. Connected applications if any shall also stand disposed of 12. There shall be no order as to costs …J (Aniruddha Bose Dated: 7th May 2021

If there is an alternate remedy the High Court should not ordinarily interfere. : Jharkhand High Court

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere, it was referred by Justice Sanjay Kumar Dwivedi of the Jharkhand High Court in the matter of Agha Sahnawaz vs The State Of Jharkhand [ W.P. (Cr.) No. 03 of 2021] This order was passed over the facts The petitioner’s learned counsel contends that it is the petitioner’s right to file an F.I.R., and the respondents are also liable to file an F.I.R., which has not been done in a timely manner.  The learned counsel for the respondent-State contends that filing an application under Article 226 of the Constitution with the Hon’ble High Court is not an acceptable remedy. She claims that a proceeding under section 107 of the Criminal Procedure Code has already been started. He claims that in these types of circumstances, the Code of Criminal Procedure provides a remedy. He claims that if no FIR has been filed, the suggested informant should contact the Magistrate in accordance with the Code of Criminal Procedure.  Learned counsel for the respondent-State relied on the decision in the case of Sakiri Vasu Vs. State of Uttar Pradesh and Ors. [ (2008) 2 SCC 409]. In the case of “Sakiri Vasu” (supra), the Hon’ble Supreme Court considered this part of the subject in paragraphs 27 and 28, which read as follows: “The Magistrate has extensive authority to direct the filing of a FIR and to guarantee that a proper investigation is carried out, and he can also supervise the inquiry to see that it is carried out properly. The High Court should discourage the filing of a writ petition or a petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or that once it has been registered, the police has not conducted a proper investigation. The remedy for this grievance is to file a criminal complaint under Section 200 Cr.P.C, not a writ petition or a petition under Section 482 Cr.P.C, before the police officers involved, and if that fails, to file a criminal complaint under Section 156(3) CrPC before the Magistrate or to file a criminal complaint under Section 156(3) CrPC before the Magistrate.” This judgment has also been relied upon by the Hon’ble Supreme Court of India in the case of “M. Subramaniam & Anr Vrs. S. Janaki & Anr. [ (2020) SCC Online SC 341].  The problem is now well settled, owing to the Hon’ble Supreme Court’s decision. If the police do not record the FIR, the complainant has the option of going to the Magistrate under the Code of Criminal Procedure. The complaint has the option of using an alternative remedy. The Court is not inclined to exercise its power under Article 226 of the Indian Constitution in light of the aforementioned judgements because the petitioner has an alternative remedy. 

Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 Jharkhand High Court Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 021 Agha Sahnawaz son of late Hazi Abdul Hasib aged about 61 years resident of Near Argora Railway Station P.S. Kadru P.O. Doranda District Ranchi 834002 ... .... .... Petitioner Versus 1.The State of Jharkhand 2. The Deputy Commissioner Ranchi 3. The Senior Superintendent of Police Ranchi 3. The Officer Incharge Argora Police Station Ranchi ... .... Respondents CORAM : HON BLE MR JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Afaque Rashidi Advocate For the State : Ms. Shivani Kapoor Advocate 05 08.04.2021 Heard Mr. Afaque Rashidi learned counsel for the petitioner and Ms. Shivani Kapoor learned counsel for the respondent State 2. This 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 3. Petitioner has filed this instant writ petition under Article 226 of the Constitution of India for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the 4. Grievance of the petitioner is that inspite of written submission of the petitioner F.I.R. has not 5. Learned counsel for the petitioner submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R which has not been done in the hand in hand 6. Ms. Shivani Kapoor learned counsel for the respondent State submits that approaching the Hon ble High Court by filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under section 107 Cr.P.C. has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered proposed informant should approach before the Magistrate in terms of Code of Criminal Procedure. In support of his contention learned counsel for the respondent State relied upon judgement in the case of "Sakiri Vasu Vrs. State of Uttar Pradesh and Ors." reported in2 SCC 409. The Hon ble Surpeme Court has considered this aspect of the matter in the case of "Sakiri Vasu"in paragraph 27 and 28 which reads as under: Indian Kanoon Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 27. As we have already observed above the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police or after being registered proper investigation has not been done by the police . For this grievance the remedy lies under Sections 36 and 154(3) before the police officers concerned and if that is of no avail under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C and not by filing a writ petition or a petition under Section 482 Cr.P.C 28. It is true that alternative remedy is not an absolute bar to a writ petition but it is equally well settled that if there is an alternative remedy the High Court should not 7. The Hon ble Supreme Court has further considered this aspect of the matter in the case of "Sudhir Bhaskarrao Tambe Vrs. Hemant Yaswant Dhage & Others" reported in6 SCC 277 wherein judgment passed in "Sakri Vasu)"was followed. In paragraph 2 of the aforesaid judgment the Hon ble Apex Court has held as under: that if a person has a grievance that his FIR has not been registered by the police or having been registered proper investigation is not being done then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) Cr.PC is made and the Magistrate is prima face satisfied he can direct the FIR to be registered or if it has already been registered he can direct proper investigation to be done which includes in his discretion if he deems it necessary recommending change of the investigating officer so that a proper investigation is done in the matter. We have said this is Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation A caution has been put at Paragraph No.3 which reads as under: We are of the opinion that if the High Courts entertain such writ petitions then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so the Magistrate will ensure if prima facie he is satisfied registration of the first information report and also ensure a proper investigation in the matter and he can also monitor the investigation Indian Kanoon Agha Sahnawaz vs The State Of Jharkhand on 8 April 2021 8. This judgment has also been relied upon by the Hon ble Supreme Court of India in the case of "M Subramaniam & Anr Vrs. S. Janaki & Anr." reported inSCC Online SC 341 9. In view of the judgment passed by the Hon ble Supreme Court the issue is now well settled. If police is not registering the FIR the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant. In view of the aforesaid judgments since an alternative remedy is available to the petitioner the Court is not inclined to exercise its power under Article 226 of the Constitution of India 10. Accordingly the instant criminal writ petition stands dismissed with a liberty to the petitioner to approach before the Magistrate concerned by invoking the statutory remedy available in the Cr.P.C 11. It is made clear that the Court is not entering into the merit of the allegations and it should be considered by the Magistrate concerned as to whether it warrants an order under Section 156(3 Cr.P.C or not Sanjay Kumar Dwivedi J.) Satyarthi Indian Kanoon

Accused has a choice to either furnish surety or give fixed deposit in case of bail: Himachal Pradesh High Court

Courts can impose restrictive conditions upon grant of bail subject to the evidence produced. The High Court bench consisting of J. Anoop Chitkara laid down strict conditions upon the petitioner seeking grant of bail in the case of Dinesh Kumar v. State of Himachal Pradesh [Cr. MP(M) No. 67 of 2021]. The petitioner came up to the court seeking regular bail on the ground that he was innocent. The petitioner had been accused of establishing sexual relations with the victim, a female aged 30 years and belonging to the Scheduled Caste Community, under the false promise that he would marry her. The victim filed an FIR against the petitioner claiming that he had stayed with her for four years under the promise of marriage and continued to have sexual relations during the entire period. He also promised the victim to solemnize Court Marriage in 2021. However, he was discreetly engaged with some other girl and upon confrontation about the same, he told the victim that such engagement was because of the family pressure and he was unhappy with the same. He continued to have coitus with her after this and even gave her contraceptive pills. The Learned Counsel for the petitioner contended that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family. The Counsel for the State on the other hand contended that if the Court was inclined towards granting him bail then such a bond must be subject to very stringent conditions. This would take care of any possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses and the likelihood of fleeting justice. Relying on the case of Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1, Para 92], the counsel argued that the Court could impose restrictive conditions subject to the evidence produced. The High Court, upon analysis of the case, stated that the victim continued to have coitus with the petitioner even when she came to know that he was engaged with another woman, and hence, any further incarceration of the petitioner would not be justified. Due to this, the petitioner is eligible for bail. Relaying on the case of Manish Lal Shrivastava v. State of Himachal Pradesh [CrMPM No. 1734 of 2020], the Court observed that “Any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another”. Further, the Court asked the petitioner to surrender all firearms along with license within 30 days, which he, subject to the provisions of the Indian Arms Act, 1959, could claim back in case of acquittal. Further that the bail could be cancelled if during the pendency of the trial the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or if he violated any condition stipulated in the present order. Click here to read the judgement

Hig h C o urt of H.P on 27 01 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 621Reserved on: 19th January 2021.Date of Decision: 20th January 2021.Dinesh Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Vacation Judge.Whether approved for reporting 1 NOFor the petitioner:Mr. Onkar Jairath & Mr. M.A. Safee Advocates. For the respondent:Mr.Ajay Vaidya Sr. Addl. A.G. with Mr. BhupenderThakur Mr. Gaurav Sharma Deputy Advocates Generaland Mr. Rajat Chauhan Law Officer. THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections181 207.11.2020Paonta Sahib DistrictSirmaur H.P.376 IPC & 3(i)(w)(ii) SCST ActAnoop Chitkara Vacation Judge. The petitioner incarcerating upon his arrest for establishing sexualrelation with a female aged 30 years and belonging to Scheduled Caste community under the false promise of marriage has come up before this Court seeking regularbail on the ground that he is innocent.2.Earlier the petitioner had filed a petition under Section 439 CrPC before theconcerned Special Judge. However vide order dated 12.1.2021 Learned SpecialJudge Sirmaur at Nahan HP dismissed the petition.3.In Para 8 of the bail application the petitioner declares having no criminalhistory. The status report also does not mention any criminal past of the accused.1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 27 01 HCHP 2 4.Briefly the allegations against the petitioner which led to the registration ofthe FIR mentioned above are that on 7.11.2020 the Police official received awritten complaint from the victim. She complained that accused Dinesh Kumarstayed with her for four years under the promise of marriage and continued to havesexual relations during this entire period on uncountable numbers. After that he alsopromised the victim to solemnize Court Marriage in the year 2021 however discreetly engaged with some other girl. When confronted he told the victim thatsuch engagement was because of the family pressure and he was unhappy with thesame. Even after that he continued to have coitus with her. He would also give hercontraceptive pills. Last time he established coitus with her on 1.11.2020. 5.Learned Counsel for the petitioner contends that incarceration before the proofof guilt would cause grave injustice to the petitioner and family.6.While opposing the bail the alternative contention on behalf of the State is thatif this Court is inclined to grant bail such a bond must be subject to very stringentconditions.7.The possibility of the accused influencing the investigation tampering withevidence intimidating witnesses and the likelihood of fleeing justice can be takencare of by imposing elaborative and stringent conditions. In Sushila Aggarwal5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to theevidence produced the Courts can impose restrictive conditions.8.The age of the victim is 30 years. She continued to have coitus with him forfour years. Even when she came to know that he has been engaged with some othergirl she believed him and continued to have sex with him. Such conduct would notjustify further incarceration of the petitioner.9.An analysis of entire evidence does not justify further incarceration of theaccused nor is going to achieve any significant purpose. Without commenting on themerits of the case the stage of the investigation and the period of incarcerationalready undergone would make out a case for bail. 10.In the facts and circumstances peculiar to this case the petitioner makes out acase for release on bail.11.Given the above reasoning the Court is granting bail to the petitioner subject Hig h C o urt of H.P on 27 01 HCHP 3 to strict terms and conditions which shall be over and above and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC 1973.12.In Manish Lal Shrivastava v State of Himachal Pradesh CrMPM No. 1734of 2020 after analysing judicial precedents this Court observed that any Courtgranting bail with sureties should give a choice to the accused to either furnish suretybonds or give a fixed deposit with a further option to switch over to another.13.The petitioner shall be released on bail in the FIR mentioned above subject tohis furnishing a personal bond of Rs. Twenty five thousandand shallfurnish two sureties of a similar amount to the satisfaction of the Judicial Magistratehaving the jurisdiction over the Police Station conducting the investigation and incase of non availability any Ilaqa Magistrate. Before accepting the sureties theconcerned Magistrate must satisfy that in case the accused fails to appear in Court then such sureties are capable to produce the accused before the Court keeping inmind the Jurisprudence behind the sureties which is to secure the presence of theaccused.14.In the alternative the petitioner may furnish aforesaid personal bond andfixed deposit(s) for Rs. Twenty five thousand onlymade in favour of"Chief Judicial Magistrate District Kangra H.P. " a)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. Bank ofAmerica Chase HSBC City Bank HDFC Bank ICICI Bank Kotak MahindraBank etc. with the clause of automatic renewal of principal and liberty of theinterest reverting to the linked account. b)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. c)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. d)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. e)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well asFIR number. f)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. g)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. Hig h C o urt of H.P on 27 01 HCHP 4 h)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returnedto the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 15.The furnishing of the personal bonds shall be deemed acceptance of thefollowing and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance to the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms of Section 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.d)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.e)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: Hig h C o urt of H.P on 27 01 HCHP 5 i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specifieddate in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.18.The petitioner shall surrender all firearms ammunition if any along with thearms license to the concerned authority within 30 days from today. However subjectto the provisions of the Indian Arms Act 1959 the petitioner shall be entitled torenew and take it back in case of acquittal in this case.19.The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call or anyother social media nor roam around the victim s home.20.During the trial s pendency if the petitioner repeats or commits any offencewhere the sentence prescribed is more than seven years or violates any condition asstipulated in this order the State may move an appropriate application before thisCourt seeking cancellation of this bail. Otherwise the bail bonds shall continue toremain in force throughout the trial and after that in terms of Section 437 A of theCrPC.21.Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.22.In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then formodification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.23.This order does not in any manner limit or restrict the rights of the Police orthe investigating agency from further investigation per law.24.Any observation made hereinabove is neither an expression of opinion on the Hig h C o urt of H.P on 27 01 HCHP 6 merits of the case nor shall the trial Court advert to these comments.25.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.26.The SHO of the concerned Police Station or the Investigating Officer shallarrange to send a copy of this order preferably a soft copy to the victim at theearliest. In case the victim notices any objectionable behavior or violation of anyterms or conditions of this order the victim may inform the SHO of the concernedPolice Station or the Trial Court or even to this Court.27.There would no need for a certified copy of this order for furnishing bonds andany Advocate for the Petitioner can download this order from the official web pageof this Court and attest it to be a true copy. In case the attesting officer or the Courtwants to verify the authenticity such an officer can also verify its authenticity andmay download and use the downloaded copy for attesting bonds.The petition stands allowed in the terms mentioned above. Anoop Chitkara Vacation Judge.January 20 2021 (ps).

When party seeks remedies that are ordinarily available in law before appropriate forum, it will be handled in accordance with applicable laws in timely manner: Patna High Court

When a party seeks remedies that are ordinarily available in law before appropriate forum, the matter will be handled in accordance with the applicable laws that are available in a timely manner 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 M/s Intelligence Security Force, Vs. The State of Bihar (Civil Writ Jurisdiction Case No.15644 of 2021) Brief facts of the case are that Petitioner has prayed the court to issue appropriate order/s, direction/s, including a writ, preferably in the nature of CERTIORARI, to quashing the respondents Memo dated 19-08-2021, by which the petitioner’s contract for security services, cleaning, and gardening on monthly payment of Govt. Polytechnic, Gaya has been cancelled. The petitioner also prayed t order the respondents to allow the petitioner to continue with the work of security services, cleaning, and gardening on the basis of monthly payment from the Gaya Government Polytechnic. Learned counsel for the petitioner affirms that the petitioner will be satisfied if a direction is issued to the authority concerned to consider and decide the representation that the petitioner will be seeking for redress of the grievance. According to learned counsel for the respondents, if the petitioner files such a representation, the authority concerned must consider and dispose of it promptly, along with a copy of the order. The petition is dismissed, and Petitioner shall file representation before Principal, Government Polytechnic, Gaya, i.e., the respondent for resolution of the grievance the aforementioned respondent must evaluate and dispose of such representation as soon as possible by a reasoned and speaking order, along with a copy of the order. While considering such representation, natural justice principles must be observed and the parties must be given a fair hearing; nonetheless, the petitioner retains the right to pursue any alternative remedies that are otherwise available under the law. hen a petitioner seeks remedies that are otherwise accessible in law before the appropriate court, the matter will be handled in accordance with the law and the petitioner will have the liberty to approach the Court if the necessity arises later on the same. Therefore, petition stands disposed of without opinion on merits.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.156421 M s Intelligence Security Force Bodh Gaya through its Proprietor Lakshmeshwar Thakur aged about 57 yearsS o Suryadeo Thakur R o Village Mastipur Post and P.S. Bodh Gaya District Gaya The State of Bihar through the Principal Secretary Department of Science and Technology Bihar Patna The Principal Secretary Department of Science and Technology Bihar ... Petitioner s The Director Department of Science and Technology Bihar Patna The Billing Branch Establishment Government Polytechnic Gaya The Principal Government Polytechnic Gaya ... Respondent s For the Petitioner s For the Respondent s Mr. Ajay Kumar Sinha Advocate Mr. Kameshwar Prasad Gupta GP 10 Mr. Satya Vrat AC to GP 10 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 20 12 2021 Heard learned counsel for the parties. Petitioner has prayed for the following relief(s): Patna High Court CWJC No.156421 dt.20 12 2021 After the matter was heard for some time learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s). Learned counsel for the respondents states that if such a representation is filed by the petitioner the authority concerned shall consider and dispose it of expeditiously and preferably within a period of two months from the date of its filing along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioner shall file a representation before Respondent No. 5 namely the Principal Government Patna High Court CWJC No.156421 dt.20 12 2021 Polytechnic Gaya within a period of four weeks from today for redressal of the grievance(s) b) The said respondent shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of two months from the date of its filing along with a copy of this order c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch f) Liberty reserved to the petitioner to approach the Court if the need so rises subsequently on the same and subsequent cause of action All issues are left open g) We have not expressed any opinion on merits The petition stands disposed of in the aforesaid Patna High Court CWJC No.156421 dt.20 12 2021 disposed of. Interlocutory Application(s) if any stands (S. Kumar J

Personal liberty of a person cannot be curtailed for the purpose of assuring the arrest of the accused: High Court of Himachal Pradesh

A person who is not involved in an offence and has no antecedents to the offence committed, but has provided shelter to the accused and not brought him before the police, cannot be treated the same as the main accused and the liberty of such a person cannot be curtailed for the purpose of arresting the main accused. This was decreed by the Hon’ble court of Himachal Pradesh by Hon’ble Justice Sri Vivek Singh Thakur in the case of Raj Kumar Vs. State of Himachal Pradesh [Cr.M.P. (M) No. 946 of 2021] on the 7th of July 2021. The brief facts of the case are, the respondent-State recovered and seized a truck of 200 Kg of poopy straw from a truck and 150 Kg of poppy straw from a sand pit on 11.2.2021. The accused persons were arrested on 19.2.2021. During the investigation, it was revealed that Parveen Kumar, son-in-law of the petitioner was the main accused. On 15.02.2021, the wife of the accused was informed about this and was asked to held with the investigation. However, on the same day the accused with his wife and family fled to Uttar Pradesh to reside at the petitioner’s house. The local police reached the house of the petitioner to arrest the accused only to find that the accused and his wife were sent to Rajasthan by the petitioner and his wife instead of submitting him at the police station. Since the petitioner did not cooperate with the police legally, the petitioner was arrested asper section 27A of the NDPS Act and Section 212 of the Indian Penal Code. The petitioner after remaining in Police custody on his arrest on 6.3.2021, is in judicial custody since 15.3.2021. The present petition has been filed to release the petitioner on bail. The counsel for the respondent-state submits that the accused was harbored by the petitioner and his wife despite the knowledge of the fact that the accused was involved in a serious offence. It was also brought to the notice of the court that Rakesh Kumar, brother of Parveen Kumar, since 15.2.2021, had been informing father-in-law and mother-in-law of Parveen Kumar to produce Parveen Kumar before Police. Despite this, the petitioner continued to shelter the accused and also helped him move to Rajasthan and did not cooperate with the police. The counsel for the petitioner contended that he had harbored his son-in- law in his house, whereas the fact is that petitioner was not knowing about involvement of his son-in-law in commission of offence under NDPS Act, as alleged by prosecution and he had not harbored his son-in-law as an accused, but due to ignorance about his involvement in the offence, he had permitted his family to stay in his house, who had left the house before arrival of the Police without informing anybody and, therefore, it is stated that it was not possible for the petitioner to trace his son-in-law. It was also submitted that the petitioner was being implicated to create pressure on the accused to surrender. It was also noticed that the accused had applied for an anticipatory bail which was dismissed by the trial court. The counsel for the petitioner further submits that the petitioner is ready to disclose information as and when it comes to his knowledge and is also ready to furnish local surety.

Hig h C o urt of H.P on 07 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.No. 9421 Reserved on: 26.6.2021 Date of decision: 7.7.2021 Raj Kumar. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 For the Petitioner: Mr.Rahul Singh Verma Advocate through Video Conferencing. For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General through Video Conferencing. Vivek Singh Thakur Judge Petitioner has been arrested on 6.3.2021 under Section 27A of Narcotic Drugs and Psychotropic Substances Actand Section 212 of the Indian Penal Codein case FIR No. 221 dated 11.2.2021 registered under Sections 15 29 27A of NDPS Act and Section 212 IPC in Police Station Paonta Sahib District Sirmour H.P. 2. Perusal of status report filed by respondent State reveals that on 11.2.2021 on the basis of reliable information Police Party had recovered and seized 200.278 Kilograms of Poppy Straw from a truck and 150.500 Kilograms Poppy Straw from pits of sand in Khera Valley on the bank of Yamuna river and thereafter on the basis of link evidence some of accused persons were arrested on 19.2.2019. On interrogation during Police Custody on 20.2.2021 on disclosure of Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 2accused Mohamad Deen 101.530 Kilograms of Poppy Straw was recovered from Satiwala Jungal Khud. 3. During investigation it has come on record in statements of co accused that one Parveen Kumar who is son in law of petitioner is also one of the main accused whereupon efforts were made to trace and apprehend him. On 15.2.2021 his wife was informed and asked to join investigation but on the same date Parveen Kumar along with his wife and daughter had hidden himself in his in laws at Atalpur Meerut Uttar Pradesh. On receiving reliable information Police Party reached Meerut on 2.3.2021 and with the help of local Police it had come in the knowledge of Police party that petitioner and his wife Anita instead of sending their son in law Parveen Kumar to Police Station Paonta Sahib have sent him to Rajasthan to stay with relative. 4. It is further stated in the status report that Parveen Kumar was harboured by his father in law and mother in law despite the fact that he had committed a serious offence and also ignoring the fact that Rakesh Kumar brother of Parveen Kumar since 15.2.2021 had been informing father in law and mother in law of Parveen Kumar to produce Parveen Kumar before Police. However petitioner neither produced Parveen Kumar before the Police nor joined investigation himself whereas Rakesh Kumar by understanding the seriousness of the case had brought all facts in the knowledge of the petitioner however petitioner after harbouring Parveen Kumar in his house had sent him to other place situated in Rajasthan. As petitioner did not cooperate legally with the Police upon this Section 27A of NDPS Act and Section 212 of IPC were also added in the challan and petitioner Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 3was arrested on 6.3.2021. Petitioner after remaining in Police custody on his arrest on 6.3.2021 is in judicial custody since 15.3.2021. 5. Learned counsel for the petitioner has submitted that accusation against the petitioner is that he had harboured his son in law in his house whereas the fact is that petitioner was not knowing about involvement of his son in law in commission of offence under NDPS Act as alleged by prosecution and he had not harboured his son in law as an accused but due to ignorance about his involvement in the offence he had permitted his family to stay in his house who had left the house before arrival of the Police from Paonta Sahib but without informing anybody and therefore it is stated that it was not possible for the petitioner to trace his son in law. He has further submitted that petitioner has been implicated and arrested in the case only in order to create a pressure upon Parveen Kumar to surrender but despite that Parveen Kumar has not surrendered but the petitioner is suffering for no fault on his part. Lastly it is stated that as and when petitioner would know about whereabouts of Parveen Kumar he undertakes to disclose inform it to the Police Court. He has submitted that for assuring the arrest of accused Parveen Kumar personal liberty of the petitioner cannot be curtailed and petitioner is also ready to furnish local surety and therefore he has advocated for release of petitioner on bail. 6. It is also pointed out that Parveen Kumar had approached this Court seeking anticipatory bail under Section 438 Cr.P.C in April Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 42021 by filing Cr.M.P.No. 5621 which was dismissed on 9th April 2021. 7. Considering the entire facts and circumstances of the case placed on record by way of status report and also submissions of learned counsel for the petitioner and respondent State I am of the opinion that in present case petitioner can be treated differently than the other main accused. The petitioner has no antecedents regarding commission of offence under NDPS Act. Considering principles and factors relevant to be considered at the time of deciding bail application with reference to entire facts and circumstances of the case nature and gravity of offence alleged to be committed by petitioner I am of the opinion that at this stage petitioner is entitled to be enlarged on bail. 8. Accordingly petitioner is ordered to be enlarged on bail subject to furnishing personal bond in the sum of `1 00 000 with one local surety as undertaken in the like amount to the satisfaction of trial Court Special Judge within a period of two weeks from today upon such further conditions as may be deemed fit and proper by the trial Court including conditions enumerated hereinafter so as to ensure the presence of the accused during trial and also subject to following further conditions: That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required that the petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to Court or to any Police Officer or tamper with the evidence. He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 5(iii) that the petitioner shall not obstruct the smooth progress of the investigation trial that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected that the petitioner shall not misuse his liberty in any manner that the petitioner shall not jump over the bail that the petitioner shall keep on informing about the change in address landline number and or mobile number if any for his availability to Police and or during trial that the petitioner shall not leave India without permission of the Court. 9. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 10. In case the petitioner violates any conditions imposed upon him his bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 11. Learned trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 12. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application. 13. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 6insist for certified copy of the order however it may verify the order from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms. Dasti copy on usual terms. 7th July 2021 Judge.

The Tenders were rejected as they did not strictly satisfy the terms and conditions prescribed: High court of Rajasthan.

Tendering usually refers to the process whereby government and financial institutions invite bids for large projects that must be submitted within a finite deadline or it is an invitation to bid for a project or accept a formal offer such as a takeover bid. Here The appeal made by the appellants were dismissed by the courts even after scrutiny of the matter as the tenders  was not in consonance with the prescribed conditions made by the respondents. A single bench comprising of  the Honorable chief justice Indrajit Mahanty in  Rice water solutions private Ltd vs. state of Rajasthan (special appeal writ no. 714/2020 ) in connected with M/s watermate technologies private limited vs. G.A. infra private Ltd. D.B. special appeal writ no. 716/2020 dealt with the issue whether to set aside the present appeal or not . The case given on 27th January 2021; the respondents invited tenders with the objective of providing pure drinking water for different locations in Rajasthan. However, the respondents rejected the tenders submitted by the appellants on the grounds of not qualifying certain required conditions and also it was against natural justice.  The appeal from the appellants was dismissed several times, first on the provisions of Rajasthan transparency in public procurement act 2012 was dismissed and the tenders were rejected as it was against natural justice, even after the higher authority meticulously examined the issues raised and dismissed the same with a well-reasoned order. Further the appellants challenged the order of the second appeal by way of SB CIVIL WRIT PETITION NO. 7935/2019 AND 8097/202O which was also dismissed. Based on the material made available on record. It was dismissed without any scrutiny of the matter. The judge based on the material provided by the council refrained from analyzing the issues raised in the petitions. According to the council of the respondents who have supported the impugned order that the scrutiny of the issues has been made by three forums and the request and claim of the appellants was held to be untenable.  According to the record the tenders submitted by the appellants were rejected as they did strictly satisfy the conditions.  The court decided that the order of the first appeal is not arbitrary, biased or unjustified and even after the careful examination and inspection the appeal was dismissed. The drawback was that the appellants submitted two certificates from different medias which were not in consonance with the conditions prescribed by the respondents. However, the substantial work about 60-70% of the contract has already been carried out which would render the appeal infructuous.  

on 01 07 2021 at 02:36:14 PM ) Pvt. Ltd. Having Its RegisteredOffice At K 60 M.I.D.C. Industrial Area Hingna Road Nagpur Maharashtra 440016 Through Its AuthorizedRepresentative Ashok Kumar Sharma S o Shri Tulsi RamSharma Aged About 30 Years2.Abhijeet Gan S o Vinayak Gan Aged About 37 Years Resident Of 19 Friends Colony Pratap Nagar Nagpur 440022 Maharashtra Shareholder Of Appellant No 1Company AppellantsVersus1.State Of Rajasthan Public Health EngineeringDepartment Government Of Rajasthan Secretariat Jaipur through Its Principal Secretary2.Principal Secretary PHED And GWD Secretariat Jaipur3.R.K. Meena Fathers Name Not Known Chief Engineer(Rural) PHED 2 Civil Lines Jal Bhawan Rajasthan Jaipur4.Additional Chief Engineer PHED Bharatpur5.M s G A Infra Pvt Ltd 402 Manupasana Sardar PatelMarg C Scheme Jaipur6.M s P C Snehal Construction Pvt Ltd And Desire EnergySolutions Pvt Ltd Consortium 401 Manupasana SardarPatel Marg C Scheme Jaipur RespondentsConnected WithD.B. Special Appeal Writ No. 716 2020M s Watermate Technologies Private Limited Regd. Off. 53 Adinath Nagar Fatehpura Udaipur Through Its Director MohitMehta S o. Narendra Kumar Mehta Age 32 Yrs313001 AppellantVersus1.Additional Chief Engineer PHED Region Udaipur JalBhawan Machchla Magra Udaipur.2.Chief EngineerPHED 2 Civil Lines Jal Bhawan Jaipur 302006[SAW 714 20203.Principal Secretary PHED Secretariat Jaipur 302005.4.G.A. Infra Pvt. Ltd. through Its Director 402 ManUpasna Sardar Patel Marg C Scheme Jaipur RespondentsFor Appellant(s):Mr. Salim InamdarMr. Raunak SinghviMr. Ribhu Dutt through VCFor Respondent(s):Mr. Anil Mehta AAGMr. Punit SinghviHON BLE THE CHIEF JUSTICE HON BLE MR. JUSTICE SATISH KUMAR SHARMAJudgment27 01 2021Brief facts of the matter are that the respondents invitedtenders for the purpose to provide pure drinking water at variousplaces in Rajasthan. The tenders submitted by the presentappellants could not technically qualify the conditions therefore their tenders were rejected. They preferred first departmentalappeal under the provisions of Rajasthan Transparency in PublicProcurement Act 2012 which was dismissed. Thereafter theypreferred second appeal which also came to be dismissed. Boththe appellants challenged the order of second appeal by way of SBCivil Writ petitions No. 7935 2019 and 8097 2020 which alsocame to be dismissed vide order dated 07.09.2020 and30.09.2020. Hence being aggrieved of the order of Single Benchdated 07.09.2020 and 30.09.2020 this appeal has beenpresented.We have heard learned counsel for both the sides andperused the material made available on record.Learned counsel for the appellants have submitted that thefirst appeal was dismissed by the authority who himself rejected[SAW 714 2020the tender of the appellants which was against the principles ofnatural justice. The second appeal was dismissed without anyscrutiny of the matter. Learned Single Judge has also refrainedfrom analyzing the issues raised in the petitions. The presentappeals deserve to be allowed.Learned counsel for the respondents have supported theimpugned order with the submissions that scrutiny of the issueshas been made consecutively by 3 forums and the claim of theappellants was held to be untenable. 60 70% of work undercontract has already been carried out hence the appeals havebecome infructuous which deserve to be dismissed.Heard. Considered.On perusal of the record it is apparent that the tenderssubmitted by the present appellants were rejected as they did notstrictly satisfy the terms and conditions prescribed by therespondents. The issues raised by the appellants in first appealwere meticulously examined and the same were dismissed with awell reasoned order. Hence it cannot be said that the order offirst appeal is arbitrary biased or unjustified in any manner. Theorder of first appeal was upheld in second appeal and thereafter the issues raised by the present appellants in SB Civil WritPetitions No. 7935 2020 and 8097 2020 were considered in detailby the Hon’ble Single Judge and it has been rightly held that theappellants submitted two certificates from different medias whichwere not in consonance with the terms prescribed by therespondents. Besides this substantial work has already beencarried out under the contract which also renders the appealsinfructuous.[SAW 714 2020Thus in view of the above no case is made out to interferein the impugned judgment accordingly the present appeals arehereby dismissed.(SATISH KUMAR SHARMA) J(INDRAJIT MAHANTY) CJSAHIL SONI 2 3

Undermining dignity and reputation to protect matrimonial rights cannot be justified: Supreme Court of India

In cases of dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. This was held in the case of Joydeep Majundhar v. Bharti Jaiswal Majundhar, [Civil Appeal Nos. 3786-3787 OF 2020], by Hon’ble Justice Hrishikesh Roy. The appellant who is an army officer applied for divorce from the Family Court at Vishakhapatnam. The respondent then filed a petition against the respondent in the Dehradun Court for restitution of conjugal rights. The appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. The respondents submitted that the appellant deserted her without any reasonable cause and pleaded for resumption of matrimonial rights. The Family Court at Dehradun allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights. Respondents who were aggrieved by the order of the lower court approached the High Court of Uttarakhand which set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment. The High Court opinioned that the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. The appellants challenged this decision an appeal in the Supreme Court of India. The counsel for the appellant submitted that the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant. Reliance was placed on the case of Samar Ghosh Vs. Jaya Ghosh, 1 (2007) 4 SCC 511, where it was held that no uniform standard can be laid down in cases of mental cruelty and each case will have to be decided on its own facts. The net outcome of the respondents conduct is that the appellant’s career and reputation had suffered. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3786 3787 OF 2020 BHARTI JAISWAL MAJUMDAR JUDGMENT Hrishikesh Roy J Heard Mr. Gopal Sankaranarayanan the learned Senior Counsel appearing for the appellantNo. 1366 2011 before this Court. The appellant appeared before the Supreme Court and stated that the case at Vishakhapatnam would be withdrawn. This Court then recorded the following “Counsel for the respondent states that the respondent would withdraw his petition pending before the Family Court at Visakhapatnam Andhra Pradesh and in case he has to file any petition seeking any relief against the petitioner he will file the petition only before the proper Court at Dehradun Uttarakhand In view of the statement made at the Bar the petitioner is left with no The transfer petition is disposed of We may however observe that in case the respondent files a petition at Dehradun the Dehradun Court shall take it up and dispose it of expeditiously and without any undue loss of time.” In the divorce proceeding the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation resulting in mental cruelty. On the other hand the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant for resumption of The Family Court at Dehradun analogously considered both cases. The learned judge applied his mind to the evidence led by the parties the documents on record and the arguments advanced by the respective counsel and gave a finding that the respondent had failed to establish her allegation of adultery against the husband. It was further found that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On consideration of the pleadings and the issues framed by the trial Court the High Court noted that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with her complaints to various authorities including the Army’s top brass had treated the appellant with cruelty to justify his plea for dissolution of marriage. While it was found that the wife did write to various authorities commenting on the appellant’s character and conduct the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court the conduct of the parties against each other would at best be squabbles of ordinary middle class married life Accordingly the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights under the Challenging the High Court’s decision Mr. Gopal Sankaranarayanan the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant. The appellant cannot therefore be compelled to resume matrimonial life with the respondent in the face of such unfounded allegations and cruel treatment. Moreover matrimonial life lasted only for few months and the couple have been separated since 15.9.2007 and after all these years restitution would not be justified Per contra Mr. Ahmad Ibrahim the learned counsel submits that the respondent is keen to resume her matrimonial life with the appellant. According to the counsel the respondent wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship. It is further contended that only because the appellant had filed the divorce case before the Vishakhapatnam Court and had obtained an ex parte order the respondent was constrained to write to various authorities to assert her right as the legally wedded wife of the appellant 10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words the wronged party cannot be expected to condone such conduct and continue to live with his her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background the level of education and also the status of the parties in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1 this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts. 14 SCC 511 11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellant’s superiors in the Army for which a Court of inquiry was held by the Army authorities against the appellant. Primarily for those the appellant’s career progress got affected. The Respondent was also making complaints to other authorities such as the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellant’s career and reputation had suffered 12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent the legal consequences must follow and those cannot be prevented only because no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue 13. Proceeding with the above understanding the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues his superiors and the society at large it would be difficult to expect condonation of such conduct by the affected party. 14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. 15. Therefore we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court. The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights stands dismissed. It is ordered accordingly 16. With the above order the appeals stand disposed of leaving the parties to bear their own cost (SANJAY KISHAN KAUL (DINESH MAHESHWARI (HRISHIKESH ROY FEBRUARY 26 2021 Page 1

Mere examination of the appellant herein cannot be considered as a change in circumstance: Supreme Court

The High Court merely classifying the appellant as the principal star witness and referring to her statement is of no consequence since the entire evidence will have to be assessed by the   Sessions   Court before concluding. A  three-judge bench comprising of The Chief Justice N V Ramana, Justice A.S. Bopanna, Justice Hrishikesh Roy adjudicating the matter of Mamta Nair v. State Of Rajasthan ( CRIMINAL APPEAL NO. 586  OF 2021) dealt with the issue of whether to allow the bail granted by the High Court or not. In the present case, the Appellant in pursuance of the order of bail passed by the High Court of Rajasthan, Jaipur Bench has preferred the present appeal. The Appellant is the sister of one of the Respondent and wife of the deceased. It was alleged that Respondent is the main conspirator of crime leading to the murder of the Appellant’s husband. On 17.05.2017 an FIR was lodged in the Police Station Karni Vihar for the offense under Sections 302, 452, and 120 B of the Indian Penal Code against the mother-in-law of the appellant. According to the complaint filed by the appellant, the deceased was killed by his family members as an honor killing since they did not agree to the marriage between the deceased and the appellant. The appellant is aggrieved by the High court’s decision of granting bail to the family members. The contention of respondent No. 2 is that in an earlier instance this   Court had canceled the bail and thereafter the statement of witnesses has been recorded.   The counsel for respondent No. 2 referred to the evidence of the appellant herein and in that context sought for bail to release respondent   No.   2.   However,   the   High   Court has not assigned any reason whatsoever except referring to the said contention. Be that as it may, as noted, an earlier order dated 03.11.2017 had been passed by the High Court enlarging respondent   No.   2,   MukeshChaudhary on bail. The mother­in­law of the appellant herein Smt. Rama Devi Nair had assailed the said order. This Court while taking note of the fact situation and before concluding that the bail is to be canceled has recorded as,” The reading of the FIR and the charge sheet shows that prima facie there is material against the respondent No. 2 and in view of that, we are of the opinion that for the time being, it is not proper to extend the liberty of bail to the respondent No. 2. In view of the pendency of the trial, we are not inclined to go into the details of the case”

2. The instant appeal is assailing the order dated Fourth Bail Application No.13680 2020. The appellant of the husband of the appellant the appellant is aggrieved by the order impugned whereunder the 2017 dated 17.05.2017 registered in the Police Station Karni Vihar for the offence under Sections 302 452 and the appellant as an honor killing since they had not agreed to the marriage between the deceased and the appellant. The further details relating to the incident in a mechanical manner through an order bereft of learned senior counsel for the appellant Shri H.D Thanvi learned Government Advocate for the State of Rajasthan Shri V.K. Shukla learned senior counsel for respondent No. 2 and perused the impugned order as the contention of the counsel for the respondent No. 2 herein that on an earlier instance this Court had cancelled the bail and thereafter the statement of witnesses has been recorded. The counsel for the herein and in that context sought for bail to release respondent No. 2. However the High Court has not assigned any reason whatsoever except referring to the said contention. Be that as it may as noted an earlier order dated 03.11.2017 had been passed by the High Court enlarging the respondent No. 2 Mukesh Chaudhary on bail. The mother­in­law of the appellant This Court while taking note of the fact situation and before concluding that the bail is to be cancelled has “ The reading of the FIR and the charge sheet shows that prima facie there is liberty of bail to the respondent No. 2. In 7. The documents already taken note by this Court indicates that there is prima facie material against the respondent No. 2. Though the appellant herein i.e. the the evidence in its entirety and it is premature to conclude on the basis of a stray sentence. Further merely classifying the appellant as the principal star witness and referring to her statement is of no consequence since the entire evidence will have to be assessed by the Sessions Court before arriving at a earlier instance had taken note of all aspects and had arrived at the conclusion that there is prima facie material against the respondent No. 2 the mere as a change in circumstance for the High Court to High Court of Judicature for Rajasthan Bench at Jaipur impugned herein is not sustainable. The same is No. 2 is cancelled. We therefore direct the respondent of Upper District and Sessions Judge Sr. No. 7 Jaipur consider the case being uninfluenced by any of the order has taken note that 17 witnesses out of 47 that at this point in time 21 witnesses have been examined and the trial is proceeding. Taking into dispose of the case as expeditiously as possible but in Pending applications if any shall stand disposed Page

Court can interfere with the findings based upon inadmissible evidence: High Court of Uttarakhand

The factual findings which have been arrived at by the court upon taking into consideration the inadmissible evidence can be interfered with by the Court. Such a case where inadmissible evidence has been allowed falls in the third category under Section 25 of the Provincial Small Cause 25 Courts Act, 1887 and the findings here can be interfered with. This proclamation was upheld by the Uttarakhand High Court in the case of Har Mohinder Pal Singh vs Rajendra Pal Singh [Civil Revision No.8 of 2019] presided by J. Lok Pal Singh. The factual matrix of the case is that the plaintiff filed SCC for a decree of ejectment, arrears of rent and mesne profit against the defendant/respondent stating that the plaintiff is the owner and landlord of property on Malviya Road, Dehradun. Some other co-owners are residing abroad and in other cities, due to which the plaintiff/revisionist is the landlord/co-owner of the suit property. The property was let out on rent to the defendant/respondent. The respondent did not pay the full amount of rent for which the plaintiff sent a legal notice demanding the rent, electricity and water charges. The respondent stated that subsequently, he came to know that plaintiff has no share and there are about 7 co-owners of this property, who are residing abroad. The plaintiff clandestinely with ulterior motives and for unjust enrichment under deep conspiracy is trying to sell the property without any right or authority. No plea had been taken by the defendant that the suit property has been sold out through registered sale deeds, it was only asserted that the plaintiff is co-owner and landlord of the suit property. However, the defendant led evidence and filed sale deeds to show that the property has been sold out. In the absence of a plea in the written statement, firstly the trial ought not to have allowed the defendant to lead evidence and secondly should not have considered the inadmissible evidence. The honourable High Court held, “In view of the above, it is abundantly clear that the tenant has not only committed default in payment of rent for the period mentioned in the plaint but it is a case of continuous default of non-payment of rent by the tenant, despite terminating of the tenancy. Insofar as the jurisdiction of the revisional court under Section 25 of the Provincial Small Cause 25 Courts Act, 1887 is concerned, the decision in Trilok Singh Chauhan (supra) cited by the learned counsel for the respondent/defendant is of no help to the defendant, rather it strengthens the case of revisionist/plaintiff.” The court further contended, “In the case at hand, as has been observed above, findings have been arrived at by the SCC court upon taking into consideration the inadmissible evidence. Thus, the present case falls in the third category under which the findings can be interfered with by this Court. Therefore, in view of the reasons recorded above, instant civil revision stands allowed. Impugned judgment and decree passed by Judge, SCC/Ist Additional District Judge, Dehradun is hereby set aside.” The Hon’ble Apex Court referred to its earlier judgment of Mundri Lal v. Sushila Rani, in which it was held that though the pure finding of fact based on an appreciation of evidence may not be interfered with, in the exercise of jurisdiction under Section 25 of the 1887 Act, there are certain circumstances under which there can be interference in exercise of such jurisdiction, which are (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence. Click here to read the judgement

Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No.19 Har Mohinder Pal Singh S o Late Sardar Inder Singh R o 28 Malviya Road Lakshman Chowk Vs. Rajendra Pal Singh S o Late Sardar Bachan Singh R o Malviya Road Lakshman Chowk Dehradun …. Revisionist .... Respondent Mr. Pooran Singh Rawat Advocate for the revisionist Mr. Aditya Singh Advocate for the respondent Hon’ble Lok Pal Singh J. This civil revision under Section 25 of The Provincial Small Cause Courts Act 1887 is directed against the judgment and decree dated 08.01.2019 passed by Judge SCC First Additional District Judge Dehradun in S.C.C. Suit No.012 Har Mohinder Pal Singh vs. Rajendra Pal Singh whereby the Judge SCC has dismissed the revisionist plaintiff’s suit. Factual matrix of the case is that the plaintiff revisionist filed SCC suit no.03 of 2012 for a decree of ejectment arrears of rent and mesne profit against the defendant respondent stating that the the owner and landlord of property no.28(45 45 1) Malviya Road Lakshman Chowk Dehradun. Some other co owners are residing in abroad and in other cities due to which the plaintiff revisionist is the landlord co owner of suit property. It was stated that a part of the suit property comprising of three rooms one common drawing room kitchen toilet and bathroom was defendant respondent for a period of 11 months at the rate of Rs.2200 per month vide agreement dated 15.05.2008. The tenancy of the respondent defendant has come to an end on 14.04.2009 but even then the defendant has not vacated the suit property despite the request of the plaintiff. It was further stated that the defendant has paid the rent upto 15.09.2008 only and thereafter he has not paid any rent. Besides this the electricity and water charges are also due on the defendant. Whenever the plaintiff demanded the rent and other charges the defendant used to abuse and commit marpeet with him. Therefore the plaintiff sent a legal notice dated 22.04.2010 the defendant demanding the rent and electricity and water charges but despite receiving the said notice the defendant has neither paid the rent and other charges nor has handed over the vacant possession of the suit premises to him. Thus the plaintiff constrained to file the present suit for a decree of eviction arrears of rent and other charges amounting to Rs.64 100 along with interest @ 12 % per annum and mesne profits @ Rs.300 per day w.e.f. 19.05.2010. The respondent defendant contested the suit and filed his written statement and denied the plaint averments. He admitted that initially the suit property was let out to him by the plaintiff and the tenancy commenced from 15.05.2008 for 11 months @ ` 2200 per month. He stated that subsequently he came to know that plaintiff has no share and there are about 7 co owners of this property who are residing abroad. The plaintiff clandestinely with ulterior motives and for unjust enrichment under deep conspiracy is trying to sell the property without any right or authority. It is stated that the suit is legally not maintainable. Provisions of the Act No.13 of 1972 are applicable to the suit property. He further stated that the plaintiff has executed a rent agreement dated 05.07.2011 on the following terms and conditions:that the plaintiff has taken Rs. 2 lakhs from the defendant as security and this amount will not bear any interest and the same is to be returned by the plaintiff after the expiry of the lease period within two months and the rent period is upto 4.6.2012. There is no rent etc. due towards the defendant That the rate of rent has been fixed Rs.1200 per month which includes the house tax as well as water tax that the plaintiff will install a separate sub electric meter and will charge as per reading. The defendant further stated that he has paid the amount of rent cost of suit interest and other expenses vide tender dated 01.08.2012 for Rs.20 000 and thus he is entitled to the benefit of Section 20(4) of the Act No.172. The rent from January 2012 upto September 2012 has been deposited through tender. The revisionist plaintiff filed replica to the written statement and reiterated the plaint averments. He further stated that the defendant has stated that the plaintiff has executed the rent deed by fraud whereas the true fact is that the defendant on the basis of said rent deed has filed a suit for prohibitory injunction against the plaintiff in the court of Civil Judge Dehradun being O.S. No.4708 wherein an order of interim injunction has been granted in his favour and the suit is still pending. The plaintiff denied the contents and execution of rent deed dated 05.07.2011. He further stated that the defendant has forged and rent deed 05.07.2011. He further reiterated that he is co owner of the suit property alongwith others and because other co owners are residing in abroad and other cities he is co owner and landlord of the suit property. There is landlord tenant relationship between the parties which can be proved from the fact that whenever the tenant paid the rent to the plaintiff the plaintiff has always given him receipt which the defendant produced in the court while obtaining order of injunction in O.S. No.471 of 2008. He further stated that the defendant has averred that he has deposited an amount of Rs.20 000 vide tender deposit dated 01.08.2012 but he has not given any particulars of the deposit made by him. He further stated that the provisions of U.P. Act No.13 of 1972 are not applicable to the suit premises. On the pleadings of parties learned Judge SCC framed the following issues: landlord tenant relationship between the plaintiff Whether the tenancy of the defendant has been terminated by the notice sent by the defendant plaintiff iii) Whether rent deed dated 05.07.2011 was executed between the plaintiff and defendant iv) Whether the plaintiff has a right to receive rent and terminating the tenancy of the defendant after he has sold out the suit Whether the plaintiff is entitled to get the property relief sought Thereafter both the parties led their oral and documentary evidence. In oral evidence the plaintiff Har Mohinder Pal Singh got examined himself as PW1 filed notice original copy of postal receipt acknowledgment rent deed police report copy of FIR rent receipt order passed in O.S. No.4708 copy of application moved to SSP plaint of O.S. No.471 of 2008 etc. On behalf of defendant DW1 Rajendra Pal Singh DW2 Yashpal Singh DW3 Vinod Sharma DW4 Manjeet Singh and DW5 Ranjan Singh were got examined. In documentary evidence he filed original copy of tender copy of affidavit tender paper original copy of notice dated 29.08.2019 receipt of house tax certified copy of the order of Hon’ble High Court copy of sale deeds agreement etc. After hearing the learned counsel for the parties and on perusal of evidence led by the parties the trial court on issue no.1 recorded a finding that a rent deed dated 15.05.2008 was executed with regard to the suit property and after execution of the same there established landlord tenant relationship between the plaintiff and respondent. Thus the issue no.1 was decided in favour of the plaintiff. On issue no.2 the trial court held that the notice issued by the plaintiff thereby demanding arrears of rent and terminating his tenancy was duly served upon the defendant and accordingly this issue was also decided in favour of the plaintiff. On issue no.3 the trial court recorded a finding that the defendant has pleaded that one other rent deed dated 05.07.2011 was executed by the plaintiff whereby the tenancy of the defendant was extended and it was asserted by the defendant that the original copy of the said rent deed is with the plaintiff. In order to prove the execution of rent deed dated 05.07.2011 besides the defendant Rajendra Pal Singh DW2 Yashpal Singh and DW5 Ranjan Ginni were also examined who deposed that rent deed dated 05.07.2011 was executed before them. The defendant had given Rs.2.00 lakhs cash to the plaintiff and as per the agreement parties agreed for rent @ Rs.1200 per month. The trial court recorded finding that witness to the agreement i.e. DW2 Yashpal Singh and DW5 Ranjan Ginni have proved the execution of rent deed and accordingly held that rent deed dated 05.07.2011 was executed between the parties and decided issue no.3 in favour of defendant. On issue no.4 the trial court recorded a finding that the suit property admeasuring 1542 sq. mtr. was divided among seven sons of Sadhu Singh and each of them received 1 7th share in the property and all the parts of the property have been sold out and if it is assumed that the plaintiff is residing as co owner in that event also it is not known as to in which portion the plaintiff is having his possession and in this regard the plaintiff has not been able to prove that he is co owner in the suit property and it appears that he has no rights over the property which is under the tenancy of the defendant. The trial court thus recorded finding that after the parts of the suit property has been sold out the plaintiff has no right over the suit property. On issue no.5 the trial court recorded finding as the entire suit property has been sold out the plaintiff does not have any right over the suit property and thus the plaintiff’s suit is liable to be dismissed. On the basis of findings recorded the trial court vide judgment and decree dated 08.01.2019 dismissed the plaintiff’s suit. I have heard learned counsel for the parties and perused the entire material available on record. Learned counsel for the revisionist plaintiff would submit that the learned Judge SCC has erred in law in entering into the question of title and ownership of the revisionist plaintiff over the suit property in a suit for eviction and recovery of rent. He would further submit that on issue no.1 the trial court has recorded a categorical finding that there exists landlord tenant relationship between the plaintiff and defendant whereas on the issue no.4 and 5 contradictory findings have been recorded by the trial court that after the part of suit property has been sold out the plaintiff has no right over the suit property and that the suit is liable to be dismissed. 10. contra respondent defendant would support the judgment and decree passed by the Judge SCC and would submit that the findings recorded by Judge SCC on issue nos.3 4 and 5 are based on appreciation of evidence. Thus being essentially a finding of fact based on appreciation of evidence the same cannot be interfered with and disturbed in exercise of revisional jurisdiction under Section 25 of the Act. To bolster his submission he would place reliance on a judgment of Hon’ble Supreme Court rendered in the case of Trilok Singh Chauhan vs. Ram Lal and others 2 SCC 566 and would refer to following paragraphs: “14. The High Court was exercising the jurisdiction under Section 25 of the Act 1887 which provision is as Sec. 25. Revision of decrees and orders of Courts of Small Causes: The High Court for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law may call for the case and pass such order with respect thereto as it thinks fit.” 15. The scope of Section 25 of the Act 1887 came for consideration before this Court on several occasions. In Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury AIR 1963 SC 698 in Para Nos. 9 and 10 this Court laid down the following: “9. The section we are dealing with is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing at one end with the view that only substantial errors of law can be corrected under it and ending at the other with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont C.J. as he then was) in Bell & Co. Ltd. v. Waman Hemraj 1938) 40 Bom LR 125: where the learned Chief Justice dealing with Section 25 of the Provincial Small Cause Courts Act observed: 3… The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice that the decision was given according to 4. The section does not enumerate the cases in which the Court may interfere in revision as does Section 115 of the Code of Civil Procedure and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted or cases where the unsuccessful party has not been given a proper opportunity of being heard or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law then the Court can interfere. But in may opinion the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.” This observation has our full concurrence. 10. What the learned Chief Justice has said applies to Section 35 of the Act with which we are concerned. Judged from this point of view the learned single Judge was not justified in interfering with a plan finding of fact and more so because he himself proceeded on a wrong 16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr. 8 SCC 609. This Court held that jurisdiction under Section 25 of the Act 1887 is wider than the Revisional Jurisdiction under Section 115 C.P.C. But pure finding of fact based on appreciation of evidence may not be interfered with in exercise of jurisdiction under Section 25 of the Act 1887. The Court also explained the circumstances under which findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25 they are when Findings are perverse or based on no material or iii) Findings have been arrived at upon taking into the inadmissible evidences or Findings have been arrived at without consideration of relevant evidences. 17. The present is not a case where High Court set aside the finding of the Trial Court on any of above grounds where Revisional Court under Section 25 can interfere. High Court has not even referred to the reasons given by the Trial Court while coming to the conclusion that the rate of rent is Rs. 1500 per month. We thus are of the view that judgment of the High Court is unsustainable.” 11. A perusal of the plaint averments would reveal that the plaintiff has specifically pleaded in the plaint that as the other co owners co sharers of the suit property are residing abroad he is the co owner landlord of suit property no.28(45 45 1) Malviya Road. Further he has pleaded that vide a rent deed dated 15.05.2008 suit property which comprises three rooms a common drawing room kitchen toilet and bathroom was let out on rent for a period of 11 months to the defendant at the rate of Rs.2200 per month. In the written statement the defendant has not denied the landlord tenant relationship between him and the plaintiff and has admitted in para 3 of the written statement that he is the tenant in one part of the suit property at the rent of Rs.2200 per month. But thereafter in subsequent paragraphs the defendant has made contrary pleadings that the rent of the demised premises is only Rs.1200 per month which includes water as well as house tax etc. and that the plaintiff have executed a rent agreement dated 05.07.2011. 12. It has come on record that the defendant Rajinder Pal Singh has also filed a suit being O.S. No.471 of 2008 for a decree of prohibitory injunction against the plaintiff revisionist in respect of same property wherein he has categorically pleaded that the plaintiff herein is owner and landlord of property and that he is tenant in the same at the rate of Rs.2200 per month. In the said suit he has admitted the execution of rent agreement dated 15.05.2008 and that the same was executed for a period of 11 months and was effective upto 14.04.2009. In such facts and circumstances it is abundantly clear that there is no dispute with regard to landlord tenant relationship between the parties as also the fact that the suit premises was given on rent to the defendant at the rate Rs.2200 per month. respondent defendant has not challenged the findings recorded on issue nos.1 and 2 but in exercise of revisional jurisdiction it is the duty of this Court to examine the veracity of the findings recorded by the trial court on issue nos.1 and 2. After going through the material available on record as well as the admission made by the defendant this Court is of the view that the trial court has rightly recorded findings on issue nos.1 and 2 on the basis of pleadings and appreciation of evidence. Thus the findings recorded by the trial court on issue no.1 and 2 stand affirmed. 13. It is the admitted case of the defendant that being the co owner of the suit property the suit property was let out to the defendant through rent deed dated 15.05.2008 for a period of 11 months. However as after expiry of three months period only the plaintiff requested the defendant to vacate the suit premises the defendant instituted the suit being Original Suit No.4708 Rajinder Pal Singh vs. Har Mohinder Pal Singh in the court of Civil Judge for a decree of prohibitory injunction against the plaintiff to restrain the plaintiff from evicting the defendant and interfering in the peaceful possession of the defendant. 14. On the other hand in the present suit the defendant set up a new case in the written statement that another rent deed was executed between the plaintiff and defendant on 05.07.2011 whereby rate of rent was fixed as Rs.1200 per month including house and water tax and the defendant gave an amount of Rs.2 00 000 to the plaintiff towards security. However the defendant did not file the original copy of rent deed dated 05.07.2011 in the court and stated that the original is with the plaintiff. In support of this pleading the defendant got examined DW2 Yashpal Singh and DW5 Ranjan Singh. The trial court having considered the statements of DW2 Yashpal Singh and DW5 Ranjan Singh arrived at the conclusion that it can be presumed the rent agreement dated 05.07.2011 was executed between the parties. 15. It is apt to note here that initially the suit property was let out by the plaintiff to the defendant @ Rs.2200 per month for a period of 11 months vide rent deed dated 15.05.2008 which commenced 15.05.2008 and was to be ended on 14.04.2009 but looking to the conduct of the defendant the plaintiff issued a letter notice dated 11.9.2008 asking him to vacate the suit premises as evident from the plaint of O.S. No.4708. As after a period of three months only the plaintiff wanted to evict the defendant from the suit property pursuant to which O.S. No.471 of 2008 was filed by the defendant there was no occasion for the plaintiff to execute another rent deed dated 05.07.2011. Furthermore the defendant never brought on record the original copy of the alleged rent deed dated 05.07.2011 and absolved him from the said liability by merely saying that the original copy of the rent deed is with the plaintiff. In case as alleged by the defendant the original copy of the rent deed dated 05.07.2011 was in possession of the plaintiff then he should have followed the procedure prescribed for leading the secondary evidence but neither he moved any application in this respect nor made any attempt so as to bring on record the alleged rent deed before the trial court. In such circumstances it was the duty cast upon the court to separate the grain from the chaff. But in the instant case the trial court has relied upon the false theory of rent agreement dated 05.07.2011 set up by the defendant ignoring the legal proposition that photocopy of a document is not admissible in evidence unless non production of primary document satisfactorily accounted for meaning thereby that unless it is established that the original documents are lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used secondary evidence in respect of that document cannot be accepted. 16. The Hon’ble Apex Court in the case of Rakesh Mohindra vs. Anita Beri and others16 SCC 483 while dealing with the effect of Sections 63 and 65 of the Evidence Act has held as under: “15. The pre conditions leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts unable to produce the same which is beyond their control. The party sought to produce secondary evidence must the non production of primary evidence. Unless it is established that the original lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used secondary evidence in respect of that document cannot be accepted. 20. It is well settled that if a party wishes to lead secondary evidence the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making LatestLaws.com FAO19 2019 with its proof which is otherwise required to be done in accordance with law.” 17. In view of the above it is held that the finding recorded by the trial court on issue no.3 is vitiated in law. The same is thereby set aside. 18. Now this Court has to examine whether co owner landlord can maintain a suit for ejectment and recovery of rent and whether the trial court is justified in dismissing the plaintiff’s suit after arriving at the conclusion that the suit property has been sold out when no such pleading was made by the defendant in his written statement. 19. At this juncture it would apt to reproduce Section 116 of The Indian Evidence Act 1872 which is as under: 116. Estoppel of tenant and of licensee of person in possession.—No tenant of immovable property or person claiming through such tenant shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was 20. In the case of State of Andhra Pradesh and others vs. D. Raghukul Pershadby LRs. and others 8 SCC 584 the Hon’ble Supreme Court considering Section 116 of the Evidence Act held that the tenant who is in possession of demised premises is estopped from questioning landlord’s title so long as tenant does not surrender possession to landlord. 21. the case of Rajendra Tiwary vs. Basudeo Prasad AIR 2002 SC 136 the Hon’ble Supreme Court has held that existence of relationship of landlord and tenant between the parties is sine qua non for granting the relief. The question of title of the parties to suit premises is not relevant and is beyond scope of 22. In Shamim Akhtar v. Iqbal Ahmad8 SCC 123 the Hon’ble Apex Court has held as under: “11. From the resume of the facts of the case stated in the foregoing paragraphs it is clear that the proceedings initiated by the landlady for eviction of the tenant has been pending in the courts over a period of nearly two decades. On perusal of the orders passed by the lower courts and the judgment of the High Court we find that time has been devoted to consideration of the objection against maintainability of the suit in the Small Causes Court. The basic fact which appears to have been lost sight of in the smokescreen created over the jurisdictional issue is that the petition was filed under section 20 of the Act by the plaintiff claiming to be landlady of the house respondent who in question against undisputedly was a tenant in occupation of the said premises. As noted earlier respondent No.1 has all through denied that the plaintiff appellant had any title to or interest in the suit property and also denied that there was any relationship of landlord and tenant between them. He had also pleaded the case that one Mohd. Ibrahim was his landlord and he had been paying rent for the suit house to him. In the facts and circumstances of the case the question to be determined was whether the case of the plaintiff that she was the landlady of the respondent and she was entitled to a decree of eviction in her favour on the grounds of denial of her title by the latter and non payment of rent by him. The learned single Judge has observed in the judgment under challenge and in our view rightly the question of title to the suit property could be gone into incidentally while deciding the case of the plaintiff seeking a decree it becomes clear of eviction. The question of title to the property was not to be finally determined in the proceeding instituted under the Act. If this position is kept in issue of maintainability of the suit in the Small Causes Court loses its relevance and consequentially the objections raised on the basis of the provisions of the Evacuee Property Act 1950 and the Enemy Property Act 1968 which were the respondent subsequently by significance for the purpose of disposal of the proceeding. Our attention has not been drawn to any material on record to show that in any duly constituted proceeding under any of aforementioned Acts the competent authority has declared the suit property to be either evacuee property or enemy property. From the discussions in the orders passed by the lower courts it also appears that an attempt was made by the tenant initiate a proceeding before the District Magistrate Varanasi cum Custodian of Enemy Property which ultimately did not succeed. It appears to us that these questions were belatedly introduced in the proceeding by the tenant with a view to prolong the proceedings so that he could continue in possession of the premises for as long a period as possible. To an extent his attempt appear to have succeeded resulting in repeated remands of the proceeding to the Trial Court for disposal of the question of jurisdiction as a preliminary issue or for determining merits of the case. It is unfortunate that the learned single Judge of the High Court could not analyse the case properly to reach at the core question which as stated earlier was whether the plaintiff was entitled to a decree of eviction against the tenant. The Trial Court in the facts and circumstances of the case clearly erred returning the plaint to the plaintiff appellant under Section 23 of the Small Causes Court Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a court of small cause depends upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. The power vested under sub section in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case as noted earlier the plaintiff filed a under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent no.1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the Trial Court at the first instance had accepted the plaintiff s case holding inter alia that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who undisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. In such circumstances it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenant respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Causes Court Act.” 23. Hon’ble Apex Court in the case of Dr. Ranbir Singh vs. Asharfi Lal 6 SCC 580 has held as “9. It may be pointed out that it is well settled law that the question of title of the property is not under: the primary question the main question about germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not though the question of title if disputed may incidentally be gone into in connection with relationship between the litigating parties. In LIC v. India Automobiles & C.othis Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parites it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord’s title by the tenant is bonafide the Court may have to got into tenant’s contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant’s denial of title of circumstances of the case.” is bona 24. Since it is admitted case of the parties that the property was let out to the defendant vide rent a deed dated 15.05.2008 thus in view of provisions of Act defendant respondent is estopped from denying the title of the plaintiff revisionist over the suit property. It is not only the defendant who is estopped from denying the title a duty is also cast upon the SCC court to consider that in a simpliciter suit for ejectment and recovery of rent question of title and ownership has no significance. But in the instant case the trial court has not only gone into the issue of ownership but has also recorded perverse findings. 25. A perusal of record would further reveal that no plea has been taken by the defendant in the written statement that the suit property has been sold out through registered sale deeds it was only asserted that the plaintiff is co owner and landlord of the suit property. However subsequently the defendant led evidence and filed sale deeds to show that the property has been sold out. In the absence of plea in the written statement firstly the trial ought not to have allowed the defendant to lead evidence and secondly should not have considered the inadmissible evidence. It is settled the absence pleadings evidence if any produced by the parties cannot be considered. No party should be permitted to travel beyond its pleadings and all necessary and material facts should be pleaded by the party in support of the case set up by it. 26. Hon’ble Apex Court in the case of L. Ponnayal Vs. Karuppannan thr. L.R. Sengoda Gounder & Ors. 11 SCC 800 in which the Apex Court has held as under: “11. We have perused the written submissions filed by the Appellant in person. The Appellant has relied upon the Partition Deed dated 6th December 1937 and the Deed of Settlement dated 6th August 1942. According Appellant the Deed of Partition dated 6th December 1937 was entered into between her grandfather late Shri Appavu Gounder and his two sons late Shri Karunappanan Gounderand late Shri Athappa Gounder. The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his According to the said Settlement Deed dated 6.8.1942 the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings.” 27. In Bondar Singh and others v. Nihal Singh and others report 4 Supreme Court Cases 161 it has been held as under: “6. It appears that having to obtain possession of the suit land through lawful means the defendants tried to dispossess the plaintiffs forcibly which led to the present suit being filed on 15.4.1972. The claim of the defendants regarding taking possession of suit land from plaintiffs in 1957 58 having been found to be false it follows that the defendants never came into possession of the suit land. Another significant conclusion which follows from these facts is that the defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P.6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established. 7. As regards the plea of sub tenancy argued on behalf of the defendants by their learned counsel first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore in the absence of a clear plea regarding sub tenancy shikmi) the defendants cannot be allowed to build up a case of sub tenancy cited by the learned counsel for the respondent defendant is of no help defendant case of revisionist plaintiff. In paragraph 16 of this judgment the Hon’ble Apex Court while referring to its earlier judgment in Mundri Lal v. Sushila Rani has held that though pure finding of fact based on appreciation of evidence may not be interfered with in exercise of jurisdiction under Section 25 of the 1887 Act but there are certain circumstances under which there can be interference in exercise of such jurisdiction which arefindings are perverse orbased on no material orfindings have been arrived at upon taking consideration the inadmissible evidence or findings have been arrived at without consideration of relevant evidence. 33. In the case at hand as has been observed above findings have been arrived at by the SCC court into consideration evidence. Thus the present case falls in third category under which the findings can be interfered with by this Court. 34. Therefore in view of the reasons recorded above instant civil revision stands allowed. Impugned judgment and decree dated 08.01.2019 passed by Judge SCC Ist Additional District Judge Dehradun is set aside. Revisionist plaintiff’s ejectment arrears of rent and mesne profit is decreed. The respondent defendant shall pay rent @ Rs.2200 per month as well as the mesne profit damages at the same rate from the date it was due till the date peaceful and vacant possession of the suit premises is handed over. Let a decree be prepared accordingly. 35. Lower court record be sent back.

“Offender uses any deadly weapon” under section 397 of Indian Penal Code also includes mere exhibition or brandishing of the weapon : Supreme Court

As per section 397 of Indian Penal Code that deals with use of any armed weapon during a robbery does not mean that the accused has to literally use the weapon in the sense he should actually fire or stab to be convicted under that section, this was decided by Chief Justice N.V. Ramana, Justice A.S. Bopanna and Hima Kohli in the case of RAM RATAN V. STATE OF MADHYA PRADESH [CRIMINAL APPEAL NO. 1333 OF 2018] In the present case Rajesh Meena lodged a complaint on 27.06.2012, at around 02:30 AM Rajendra and Chotu woke him up and pointed a gun at him pointing towards his chest demanding money, complainant informed that he did not have any money so the accused took their motorcycle instead. Upon the completion of investigation the police charged the appellant under section 392/397 of IPC. The trial court also framed the charges under section 392/397 of IPC where the accused counsel argued that the charge under section 397 of IPC cannot be sustained because even if we assume that they carried the fire arm, they did not use it. The question that was adjudicated upon was whether the accused has to actually use the weapon in the sense he had to fire it in order to come under section 397 of IPC or not because if it did not then the punishment for the accused would be lesser that otherwise. Upon this subject matter Justice Bopanna said that “it is clear that the use of the weapon to constitute the offence under section 397 IPC does not require that the offender should actually fire from the fire arm” and further held that mere showing or exhibition of it openly in a way that it threatens the victim is sufficient.” But in the present case where there was more than one accused, it was also observed that if the accused who was pointing the gun actually used it, then only he will be charged under section 397 of IPC. The Supreme Court also said that vicarious liability against the offenders will also be noted if they have been charged under section 397 if it is read with section 34 or section 149 of IPC. This section and the confusing language as to what does “using” a deadly weapon mean is somewhat puzzling because the word “use” has a lot of meanings. It can be said that apprehending fear in the mind of the complainant is sufficient to make the case come under section 397 of IPC because creating fear is also a “use” of the gun. We can take example of bank robberies from movies where the offender points a gun at the cashier and forces them to give the offender all the money, even though in such scenes the offender does not actually fire or shoot the cashier but the process of robbery is made easier and faster because of the gun pointed at the cashier’s head so it can be said that mere use of the gun or a knife is not just to shoot or stab the complainant but it is also to do any such thing that makes the process of robbery easier for the offender. Though the language of the section 397 of IPC may appear confusing, the Supreme Court has in detail analysed and understood the object of the law makers and rightly convicted the accused under section 397 of IPC.

The appellant is before this Court in this appeal High Court of Madhya Pradesh in Criminal Appeal No.691 2013 titled Ram Ratan vs. State of Madhya High Court along with the companion appeal the consideration herein is limited to the case against the appellant being aggrieved by the judgment dated 31.07.2013 passed by the Special Judge read with Section 11 13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam the appellant and other accused to rigorous of the same to undergo imprisonment for a further fine of Rs.500 ­ in default of the same to further co­accused Chotu died during the pendency of his appeal due to which the said appeal abated. As noted considered by the High Court through the common judgment the present appeal is filed by the appellant alone and as such the conviction and sentence of the appellant based on the contentions put­forth on his constructed in the field to guard the crops at about 02:30 a.m the appellant along with Raju alias Rajendra alias Rajendra was having a gun with him and on demanded to part with the money. The complainant pocket of his shirt. Thereafter all the three accused the motorcycle got punctured and therefore all the motorcycle and the motorcycle was taken away. By the was passing by to milk the buffaloes. The complainant narrated the incident following which steps were taken to lodge the complaint. The police having taken action recovered the motorcycle as also the mobile phone and for the offences under Sections 392 397 of IPC and The trial court framed charges through the order dated 26.02.2013 under Sections 392 397 of IPC and Sections 11 13 of MPDVPK Act 1981 against the appellant and Chotu while an additional charge under Section 25 (a) 27 of the Arms Act was framed against the other co­accused namely Raju alias Rajendra. The appellant and his co­accused having through PW1 to PW12 the documents which were referred in detail to the evidence tendered by the complainant Rajesh who narrated the entire the complainant and Mukesh brother of the complainant corroborated the version stated by the complainant. Dhanpal father of the complainant had come to know about the incident in the same sequence as had been stated by PW3. Mahavir the seizure of motorcycle and the gun respectively However PW6 and PW7 had turned hostile the 12­bore gun. A.L. Azad is the police officer The trial court on analysing the said evidence returned the finding that the appellant and his co­ therefore held the charge to be proved. The conviction and the sentence were accordingly handed down. The appellant and his co­accused while assailing the judgment of the trial court apart from contending that contended that the charge under Section 397 of IPC has reappreciated the evidence with regard to the the trial court convicting the appellant and sentencing him in the manner as has been done. The appellant therefore claiming to be aggrieved by the judgment for the appellant Mr. Sunny Choudhary learned counsel The learned counsel for the appellant while that the appellant has been implicated due to political rivalry though no such incident as alleged had taken Court and the contentions put­forth therein learned counsel has also relied on the decision of this Court dated 29.10.2021 in Crl. Appeal No.9021 titled Ganesan vs. State Rep. by Station House Officer and connected appeal i.e Crl. Appeal No.9021. With reference to the said judgment it is contended that that even otherwise the charge under Section 397 IPC would not be sustainable against the appellant herein since there is no serious allegation or proof of the appellant having used any weapon much less deadly sentence of nearly 4 years which is sufficient The learned counsel for the State would refer to has pointed out that the trial court as also the High Court has taken note of the said evidence. The charge conclusion that the contention as put­forth by the appellant or his co­accused was not acceptable. It is contended that the motorcycle and the mobile phone which had been stolen by the accused had been firing from it is not required but the exposure of the is therefore contended that the judgment passed by the the High Court it is seen at the outset that the complainant Rajesh has spoken in detail with night of 26­27 6 2012. The manner in which he was in detail. The identification of the persons which was possible due to the light which was on is also stated Though lengthy cross­examination has been made in so discredited. Insofar as the contention put­forth by the learned counsel for the appellant that he has been cross­examination contained in paras 27 28 and 29 of the cross­examination PW1 has stated that his cousin Ramcharan is a political leader. Further in the same was created and the complaint was filed. It is only an attempt by the learned counsel to try and connect the PW1 has mentioned is the manner in which the taken place after the suggestion given by the family reappreciated by the High Court we do not deem it witnesses having noted the detailed account given by 12. Though this remains the position the question which needs consideration is with regard to the therefore the charge under Section 397 IPC is not sustainable and also the further contention that the charge under Section 397 even otherwise would not be sustainable against the appellant since there is no material or evidence to indicate that the appellant had “392. Punishment for robbery.­ Whoever commits robbery shall be punished with fine and if the robbery be committed on the highway between sunset and sunrise the imprisonment may be extended to fourteen 397. Robbery or dacoity with attempt to cause death or grievous hurt.­ If at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or any person the imprisonment with which 14. On the said aspect it would be appropriate to take Delhi Administration 1 SCC 797 wherein it is “5. Section 392 of the Penal Code provides may extend to ten years and shall also be liable to fine and if the robbery be committed on the highway between sunset and sunrise the imprisonment may be extended to fourteen years. The sentence of imprisonment to be awarded under Section any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word High Courts is confined to the offender of committing robbery cannot attract Section 397 for the imposition of the who had not used any deadly weapon. In Kumar or somebody else referred to by the learned counsel for the appellant the above noted Section 397 IPC for the imposition of minimum punishment on another offender there is distinction and difference between weapon and the word used in Section 398 IPC is ‘offender is armed with any deadly weapon’. Therefore for the purpose of ‘uses’ any deadly weapon Section 397 IPC the law laid down by this Court in the the accused in the present appeals is required to be considered. Even as per the of any weapon was against Benny and Prabhakaran. Therefore in absence of any allegations of use of any deadly weapon by convicted for the offence punishable under From the position of law as enunciated by this Court and noted above firstly it is clear that the use of IPC does not require that the ‘offender’ should actually or holding it openly to threaten and create fear or other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the ‘offenders’ had used the firearm or deadly weapon only such of the ‘offender’ who has used the firearm or deadly weapon alone would be liable to be of Section 397 IPC as a standalone provision the allegation and the consequent charge that will be IPC and such other provisions of law which may IPC. In such event it will have to be looked at differently in the totality of the facts evidence and invoked in that particular case to frame a charge against the accused. In the instant case the charge under Section 34 IPC was not framed against the against the appellant. Hence benefit of the hold the aggressor alone as being guilty will be available to the appellant if there is no specific Keeping this aspect in view it is necessary to examine the manner in which PW1 has alleged against also an ‘offender’ who used the firearm so as to be is complicit to the incident more particularly when in the FIR the evidence tendered by the victim Rajesh names Raju Chotu and Gujar approached relevant time I was sleeping there. Among them Raju Gujar woke up me from my sleep and pointed the nozzle of the country rifle on my chest and demanded with me to handover whatever money I had in my possession at that relevant not have any money with me. Still he chest itself and again asked me to hand over the keys of my motor cycle. At that relevant time I was having my Splendour fear of said Raju as well as apprehending danger from his arm I politely handed over kept. It was a Spice­42 Model branded company phone By again putting the firearm ­ Rifle on my chest he took my mobile by himself by inserting his hands in my pocket and taking out the mobile From the extracted portion and more particularly alias Rajendra who had pointed out the firearm to his chest and indulged in the act of robbing him of his sit on the motorcycle and had taken him away. It is made him to step down from the motorcycle and by threatening him had taken him in the direction of Amalada village. Though he has deposed to that extent the fact of the appellant having used another country Raju alias Rajendra has not been established. It is no doubt true that the appellant had participated in the offence of committing robbery since ultimately the appellant and the property seizure memo indicates that the motorcycle was recovered at the instance of the appellant that certainly constitutes an offender under “At about 2:30 in the morning the accused to him. The Raju was having a gun with him and forced him to wake up and demanded money when the complainant therefore the Raju pointed out his gun the complainant in its turn handed over the key of the motorcycle the Raju has of the shirt of the complainant thereafter all three accused person who is the complainant to sit on the motorcycle along with them when they reached near the to complainant to get down from the motorcycle and thereafter they took his motorcycle and went away toward Aamlda and Morkhudana then I reached at Aamlda and all happening narrated to his maternal uncle Tulsiram and then his father also came there thereafter I searched the motorcycle but it is not searched out therefore came to local police station for lodging the report and he wants to take Therefore if the contents of the FIR and the evidence tendered by PW1 are taken note of it would it was recovered in the presence of the witnesses. In was capable of being fired. His evidence would disclose Further based on the said evidence it is Raju alias Rajendra alone who has been convicted under the namely Raju alias Rajendra had used the firearm and there was neither any allegation apart from a stray sentence nor was such charge of having used firearm in view the charge under Section 397 IPC can be ‘offender’ who used the firearm the charge alleged 11 13 of MPDVPK Act 1981 cannot be sustained of committing robbery which stands established with sufficient evidence the conviction handed down by the In view of the above conclusion the sentence have arrived at the conclusion that the charge under Section 397 and Section 11 13 of MPDVPK Act 1981 are rigorous imprisonment imposed by the trial Court and our opinion imprisonment of around 3 years would be The judgment dated 19.10.2012 passed by the Special Judge in Special Case No.13 2013 The appellant is ordered to be set at liberty forthwith if the fine is paid and he is not The appeal is allowed in part to the extent vi) All pending applications if any shall stand

Minor girl who eloped voluntarily is not termed ‘kidnapping’ under Section 363 IPC: High Court of Calcutta

If a minor girl has voluntarily gone with another person and was not induced but was engaged in a romantic relationship with him, it will not fall under section 363 IPC for offence of kidnapping. This was decided in the case of Sk.Sajid @ Sk.Sagir @ Pancha Vs. State of West Bengal [C.R.A./718/2014] by Hon’ble Judge Bibek Chaudhuri in the High Court of Calcutta. The facts of the case are that a complaint was filed against the accused for abduction of a minor girl. The circumstances of the case were such that the minor had gone out on the pretext of seeing god immersion and thereafter disappeared. The father of the minor girl was informed that the appellant has her in the custody and only if she was married to him, he would return the minor to the family. The father refused to his demand and filed complaint under Section 366A of the IPC. In the course of trial proceedings, it was established that the appellant was involved in a romantic relationship with the minor. The medical examination proved that the woman was accustomed to sexual intercourse. After his conviction by the lower court, this appeal was filed. The question of law that is brought forth in this case is whether all conditions of Section 366 were met and if not, then which provision shall be applied here. For this the court analyzed the said provision closely and listed out all ingredient of the provision explicitly as below- (1) there must be inducement of a minor girl by the accused; (2) the girl must be under the age of 18 years and (3) the inducement shall be to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person The contention put forth by the appellant was that ‘inducement’ is necessary for one to be booked under this section. However when the statement of the minor girl was taken, she has stated that she voluntarily fled away with him and she used to love him. Thereafter, they got married in a mosque and began living as husband and wife. On the other hand, the prosecution argued that a case should be made out under Section 363 for kidnapping as she was forcefully kept away from her legal guardian. The court said that it was in full agreement with the advocates that the learned trial Judge absolutely misconstrued the provision of Section 366A of the IPC and passed the order of conviction and sentence under the penal provision of Section 366A of the Indian Penal Code under misconception of fact and law. To decide upon the application of Section 363 IPC, the case of State of Haryana vs. Raja Ram AIR 1973 SC 819 was referred to wherein it was held “he object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian”

IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction The Hon’ble Mr. Justice Bibek Chaudhuri Sk.Sajid @ Sk.Sagir @ Pancha State of West Bengal For the appellant : Mr. Kusal Kumar Mukherjee Adv For the State : Mr. Arijit Ganguly Adv Mr. Avik Ghatak Adv Heard on : 15.01.2021 27.01.2021 & Judgment on : 04.03.2021 Bibek Chaudhuri J. The judgment and order of conviction and sentence dated 18th September 2014 passed by the learned Additional Sessions Judge 17th Court at Alipore South 24 Parganas in Sessions Trial No.3(3) of 2013 convicting the appellant for committing offence punishable under Section 366A of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years with fine of Rs.25 000 in default rigorous imprisonment for six months is assailed in the instant One Tarak Bag lodged a written complaint on 24th November 2012 stating inter alia that on 23rd November 2012 there was emersion of the Goddess “Jagadhatri”. In order to see the emersion his minor daughter went to Rajabagan Ferry Ghat of his locality However she did not return home till 11 p.m.. The de facto complainant being the father of the said minor girl conducted search for his daughter. He also informed his matrimonial home over telephone about the incident. His matrimonial relations informed him that his minor daughter was in the house of the appellant at Budge Budge D.N.Ghosh Road within police station Budge Budge near Queen After getting such information the matrimonial relations of the de facto complainant went to the house of the appellant and asked him as to whether the daughter of the de facto complainant was under his custody. The appellant replied that if the daughter of the de facto complainant was given marriage with the appellant then only she would be returned to her father. Her father was not agreeable to such proposal as he and the appellant belong to different regions. Then the informant lodged a complaint before the Officer in Charge Rajabagan On the basis of the said complaint police registered Rajabagan Police Station Case No.1312 dated 24th November 2012 under Sections 366A 120B of the Indian Penal Code and took up the case for investigation. On completion of investigation investigating officer submitted charge sheet against the accused appellant namely for trial and disposal The case was committed to the learned Court of Sessions and subsequently it was transferred to the 9th Fast Track Court at Alipore The lower court record suggests that the learned Additional Sessions Judge 9th Fast Track Court framed charge against the accused Sk.Sajid under Section 366A of the Indian Penal Code Subsequent to the framing of charge the case was again transferred to 17th Court of the learned Additional Sessions Judge at Alipore for trial. During trial prosecution examined seven witnesses Amongst them P.W.1 Tarak Bag is the de facto complainant P.W.3 Tandra Bag is the daughter of P.W.1. All other witnesses are either relatives or neighbours of Tarak Bag excepting P.W.6 and P.W.7 P.W.6 Dr.Tapan Kanti Roy medically examined the daughter of the de facto complainant and the appellant. The Medico legal examination report has been marked as Exhibit.7. It is ascertained from the said report that the daughter of the de facto complainant was accustomed to sexual intercourse P.W.7 Prem Sankar Ojha is the Investigating Officer of the case who submitted charge sheet on completion of the investigation After examination of the witnesses on behalf of the prosecution the accused was examined under Section 313 of the Code of Criminal Procedure while giving answer to question No.4 made by the learned Trial Judge he admitted that he had love affairs with the daughter of the de facto complainant On the basis of the evidence on record the learned Trial Judge held the accused guilty for committing offence under Section 366A of the Indian Penal Code and convicted and sentenced him accordingly Section 366A of the Indian Penal Code is a penal provision for procuration of minor girl. The Section runs thus: “Section 366 A. Procuration of minor girl. Whoever by any means whatsoever induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.” On plain reading of the aforesaid provision shows the following ingredients to be proved by the prosecution in order to bring home the charge under Section 366A of the Indian Penal Code: there must be inducement of a minor girl by the accused the girl must be under the age of 18 years and the inducement shall be to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person The de facto complainant in his written complaint did not state anything about illicit intercourse committed by any person other than the accused upon her daughter Statement of the minor girl of the de facto complainant recorded under Section 164 is of great importance in the instant case. In her statement under Section 164 of the Code of Criminal Procedure she stated before the learned Magistrate that she used to love Sk.Sajid. On 23rd November 2012 she fled away voluntarily with him without intimating anything to her family members. Then both of them married in a Mosque. Thereafter they stayed in the house of the elder sister of the appellant as husband and wife. When they were staying together they had sexual intercourse In course of argument it is frankly admitted by Mr. Ghatak that that the main ingredients of offence under Section 366A to the effect that the victim girl was induced to go to a place for illegal sexual intercourse with a person other than the accused has not been proved Practically no such case is made out by the prosecution. So the accused cannot be convicted under Section 366A of the Indian Penal Code. However he submits that offence under Section 363 of the Indian Penal Code is amply proved against the accused. In order to substantiate his contention it is submitted by Mr. Ghatak that Section 361 lays down the essentials of offence of kidnapping. The prosecution is able to prove that the accused induced the minor girl under 18 years of age or took her out of keeping of the lawful guardian of such minor girl without his consent. Thus kidnapping is proved. In such case the accused commits an offence under Section 363 of the Indian Penal Code. Thus according to the learned advocate for the State respondent the accused should be held guilty for committing offence under Section 363 of the Indian Penal Code and he should be convicted accordingly. It is also pointed out by Mr. Ghatak that for such purpose charge framed against the accused need not be altered as Section 363 is the minor offence compared to the offence under Section 366A of the Indian Penal Code. In support of his contention Mr. Ghatak refers to a decision of the Hon’ble Supreme Court in the case of State of Haryana vs. Raja Ram reported in AIR 1973 Supreme Court 819. The Hon’ble Supreme Court in the aforesaid decision had the opportunity to discuss the scope of the words “take out of the keeping”. According to the Hon’ble Supreme Court persuasion by the accused persons which creates willingness of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section and consent of such minor is immaterial. In the instant case the minor girl of the de facto complainant clearly stated in her statement under Section 164 of the Code of Criminal Procedure that she went away from the lawful guardianship of her father with the accused. The victim girl being a minor her consent is immaterial and when she left with the appellant the Court has every right to presume that she was induced by the appellant. Mr. Mukherjee learned advocate for the appellant on the other hand submits by referring to a decision of the Hon’ble Supreme Court in the case of Sat Parkash versus State of Haryana and another reported in 2016(1) AICLR 27that the appellant cannot be held guilty for committing offence under Section 366A of the Indian Penal Code as there was no evidence on record that she seduced for illicit intercourse with another person. Since the learned advocate for the respondent has made the same submission and with usual frankness he submits that he does not find any reason to support conviction under Section 366A of the Indian Penal Code against the appellant this Court is of the view that no further discussion as to whether the learned trial Judge was correct in holding the accused guilty or not for committing offence under Section 366A of the Indian Penal Code is necessary. However it will not be out of place to mention that I am in full agreement with the learned advocates for the parties that the learned trial Judge absolutely misconstrued the provision of Section 366A of the Indian Penal Code and passed the order of conviction and sentence under the penal provision of Section 366A of the Indian Penal Code under misconception of fact and law. Now the discussion revolves around the question as to whether under the facts and circumstances of the case and evidence on record the accused appellant should be held guilty for committing offence under Section 363 of the Indian Penal Code. quoted below: Paragraph 8 of Raja Ram’s judgment is relevant and “8.The approach and reasoning of the learned single Judge is quite manifestly insupportable both on facts and in law. It clearly ignores important evidence on the record which establishes beyond doubt that the prosecutrix had been solicited and persuaded by Raja Ram to leave her father’s house for being taken to the Bhishamwala well. Indeed earlier in his judgment the learned single Judge has himself observed that according to the statement of the prosecutrix on receipt of Raja Ram’s message as conveyed through his daughter Sona she contacted Raja Ram during day time in his house and agreed with him that shewould accompany himto go to Bhishamwala well at midnight to meet Jai Narain as the other members of her family would be sleeping at that time. If according to the learned single Judge it was in this background that the prosecutrix had left her father’s house at midnight and had gone to the house of Raja Ram from where she accompanied Raja Ram to the Bhishamwala well it is difficult to appreciate how Raja Ram could be absolved of his complicity in taking the prosecutrix out of the keeping of her father her lawful guardian without his consent. It was in our opinion not at all necessary for Raja Ram himself to go to the house of the prosecutrix at midnight to bring her from there. Nor does the fact that the prosecutrix had agreed to accompany Raja Ram to Bhishamwala well take the case out of the purview of the offence of kidnapping from lawful guardianship as contemplated by Section 361 I.P.C. This is not a case of merely allowing the prosecutrix to accompany Raja Ram without any inducement whatsoever on his part from her house to Bhishamwala well Section 361 I.P.C. reads “361: kidnapping from lawful guardianship Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. Explanation. The words ‘lawful guardian’ in this Section include any person lawfully entrusted with the care or custody of such minor or other person. Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.” The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian. The words “takes or entices any minor out of the keeping of the lawful guardian of such minor” in S.361 are significant. The use of the word “keeping” in the context connotes the idea of charge protection maintenance and control: further the guardian’s charge and control appears to be compatible with the independence of action and movement in the minor the guardian’s protection and control of the minor being available whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian’s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.” The Hon’ble Supreme Court on careful scrutiny of the evidence on record found that the prosecutrix had been solicited and persuaded by Raja Ram to leave her father’s house for being taken to the Bhishamwala well. In the instant case it is ascertained from the statement of the minor girl of the de facto complainant as well as her evidence in Court that she left her house with the accused voluntarily on her accord. In S. Varadarajan versus State of Madras reported in AIR 1965 SC 942 under the fact of the case that a college going girl on the verge of majority contacted the accused over telephone and told him to meet her to go with her to Sub Registrar’s office for registering marriage agreement the Hon’ble Supreme Court held that no threat or inducement on the part of the accused was proved. The girl insisted the accused to marry her. Therefore the important ingredient of offence under Section 361 of the Indian Penal Code so far as it relates to “taking out of lawful guardianship” has not been proved. The facts of the instant case is almost similar to the fact of S Varadarajan (supra). In the instant case the victim girl stated that she voluntarily left her house and went away with the accused. In her statement under Section 164 of the Code of Criminal Procedure the victim stated that she was 17 years old at the time of incident. However the prosecution submitted her birth certificate issued by the competent authority of Budge Budge Municipality wherefrom it is ascertained that the daughter of the de facto complainant was born on 23rd February 1996. Therefore she was about 16 years of age at the time of incident. Though the daughter of the de facto complainant was under 18 years of age on the date of commission of offence when the prosecution failed to prove that the victim was either induced to go with the accused or the accused took her away from her lawful guardianship he cannot also be held guilty for committing offence under Section 363 of the Indian Penal Code. For the reasons stated above the impugned judgement and order of conviction and sentence is set aside. The appellant be immediately acquitted from the charge under Section 366A of the Indian Penal Code and he be released at once if he is in correctional home. The appellant be discharged from his bail bond. Let a copy of this order be sent to the learned trial Judge along with the Lower Court record. Bibek Chaudhuri J

Commissioner of Customs & Central Excise Versus M/s Hongo India (P) Ltd. & Anr.

“Legislative intent must be respected” When S.L.P (c) No. 14467 of 2007 came up for hearing on 4.12.2008, a two-Judge Bench, after noticing the decision in Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Ltd. Noida (2008) 3 SCC 73, expressed doubt about the said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. In all these three matters, Commissioner of Customs & Central Excise approached the High Court of Allahabad by way of reference application under Section 35 H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision dismissed the reference application as barred by limitation. ISSUE BEFORE THE COURT: Whether the High Court in the reference application under Section 35H (1) of the unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e., Central Excise Act? RATIO OF THE COURT: In all three matters, the Commissioner of Customs & Central Excise had approached the High Court by way of reference application beyond the prescribed period of 180 days. The High Court of Allahabad, with reference to the scheme of the Act and in the absence of specific provision for applying Section 5 of the Limitation Act, took note of other provisions i.e., Sections 35, 35B and 35EE, which enable the other authorities to condone the delay if sufficient cause was shown, accordingly, dismissed the reference application filed by the Commissioner of Central Excise on the ground of limitation. The learned counsel for the appellant side argued that the High Court had plenary powers under the Act is competent to consider the delay even after the prescribed period and that in the absence of specific prohibition in the Act for condoning delay particularly in Section 35H in lieu of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable and the High Court ought to have exercised its power by condoning the delay. He initially contended that since Section 35H speaks about the substantial question of public importance, even the delay, if any, has to be condoned. On the other hand, learned counsel appearing for the respondents supporting the stand taken by the High Court submitted that the Central Excise Act is a self-contained Act and a Code by itself and in the absence of specific provision enabling the High Court to exercise its power by condoning the delay, the High Court is justified in refusing to entertain the reference application of the Excise Department filed beyond the prescribed period. The court examined Section 35H of the Act and observed that except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period. In the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. The court further observed that 35B provides 90 days time and subsection 5 allows the Appellate Tribunal to condone the delay and 35B gives the Central Government similar power given that sufficient cause for the delay is shown. whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days. The court made a reference to the case Union of India v. M/s Popular Steele in which the scope of the phrase “but not thereafter” was examined. The court was of the view that to hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result. The court further dwelled into the powers of the High Court under Letter Patents jurisdiction with ref. to Sharda Devi vs. State of Bihar, (2002) 3 SCC 705 holding that while there was no bar to maintainability of appeal under Letter Patents jurisdiction, the scenario was not applicable to this case. It further observed that though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. The court relied upon Punjab Fibres Ltd., Noida (supra) wherein it was concluded that concluded that “the High Court was justified in holding that there was no power for condonation of delay in filing reference application. The court held that the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Addressing the contention that the Section 29 (2) of the Limitations Act must exclude the operation of the usual limitation period, the court held that that would depend upon the law which prescribes such exclusion i.e the Central Exide Act in the present case. The court observed that the scheme of the Central Excise Act, 1944 supports the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act and that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. DECISION HELD BY COURT: The court held that the High Court has no power to condone the delay in filing the “reference application” filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. Appeal dismissed.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009 Arising out of S.L.P.No. 144607 Commissioner of Customs .... Appellant(s M s Hongo IndiaLtd. & Anr .... Respondent(s CIVIL APPEAL NO. 2009 Arising out of S.L.P.No.189907 CIVIL APPEAL NO. 2009 Arising out of S.L.P.No.207007 JUDGMENT P. Sathasivam J In all these appeals the question for consideration is whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35 H(1) of the Central Excise Act 1944 beyond the prescribed period by applying Section 5 of the Limitation Act 1963. When S.L.P.(c No. 144607 came up for hearing on 4.12.2008 a two Judge Bench after noticing the decision in Commissioner of Customs Central Excise Noida vs. Punjab Fibres Ltd. Noida 3 SCC 73 expressed doubt about the said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. After finding that under Section 35H of the unamended Act with regard to application for reference the High Court exercises its advisory jurisdiction in a case where the substantial question of law of public importance arise the said Bench directed the matter to be heard by larger Bench. In this way all the above mentioned matters arising from the judgments of the Allahabad High Court on identical issue posted before this Bench for determining the question namely “whether the High Court in the reference application under Section 35H 1) of the unamended Act has power under Section 5 of the Limitation Act 1963 to condone the delay beyond the period prescribed under the main statute i.e. Central In all these three matters Commissioner of Customs Central Excise approached the High Court of Allahabad by way of reference application under Section 35 H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision dismissed the reference application as barred by limitation Chapter VI A of the Act deals with Appeals. As per Section 35 any person aggrieved by any decision or order passed by a Central Excise Officer may file an appeal to the Commissioner of Central Excise within sixty days from the date of the communication to him of such decision or order. Proviso to sub section enables the Commissioner Appeals) if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days allow it to be presented within a further period of thirty days. Section 35B speaks about appeals to the Appellate Tribunal. Any person aggrieved by certain decisions orders passed by the Commissioner of Central Excise or Commissioner may prefer an appeal to the Appellate Tribunal within three months from the date on which the order sought to be appealed against is communicated to the officer concerned or the other party Sub section enables the Appellate Tribunal to condone delay even beyond the prescribed period if there was sufficient cause for not presenting it within that period Section 35EE provides revision by Central Government As per sub section an application under sub section enables the revisional authority to condone the delay for a further period of ninety days if sufficient cause is shown Unamended Section 35G speaks about Appeal to the High Court. Sub section 2(a) enables the aggrieved person to file an appeal to the High Court within 180 days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party. There is no provision to condone the delay in filing appeal beyond the prescribed period of 180 days. Unamended Section 35H speaks about reference application to the High Court. As per sub section the Commissioner of Central Excise or other party within a period of 180 days of the date upon which he is served with notice of an order under Section 35C direct the Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. Here again as per sub section application for reference is to be made to the High Court within 180 days and there is no provision to extend the period of limitation for filing the application to the High Court beyond the said period and to condone the delay. In these three appeals we are concerned with “reference application” made to the High Court under Section 35Hof the Act before amendment of Central Excise Act by Act 49 2005by which several provisions of the Act were omitted including Section 35H. However in view of the reference made it is but proper to consider the question referred before us. Admittedly in all these matters the Commissioner of Customs & Central Excise approached the High Court by way of reference application beyond the prescribed period of 180 days. The High Court of Allahabad with reference to the scheme of the Act and in the absence of specific provision for applying Section 5 of the Limitation Act took note of other provisions i.e. Sections 35 35B and 35EE which enable the other authorities to condone the delay if sufficient cause was shown accordingly dismissed the reference application filed by the Commissioner of Central Excise on the ground of limitation 10) Now let us consider whether Section 5 of the Limitation Act is applicable in respect of reference application filed in the High Court under Section 35H of the unamended Act. 11) Mr. Parag P. Tripathi learned Additional Solicitor General appearing for the appellant contended that in view of the fact that the High Court has all inherent and plenary power is competent to consider the delay even after the prescribed period under the Act. He further contended that in the absence of specific prohibition in the Act for condoning delay particularly in Section 35H in lieu of Section 29(2) of the Limitation Act Section 5 of the Limitation Act is applicable and the High Court ought to have exercised its power by condoning the delay. He initially contended that since Section 35H speaks about the substantial question of public importance even the delay if any has to be condoned. On the other hand learned counsel appearing for the respondents supporting the stand taken by the High Court submitted that the Central Excise Act is a self contained Act and a Code by itself and in the absence of specific provision enabling the High Court to exercise its power by condoning the delay the High Court is justified in refusing to entertain the reference application of the Excise Department filed beyond the prescribed period. He also contended that in the light of the scheme of the Act and of the fact that sufficient period i.e 180 days has been provided for the Commissioner as well as the other party for making reference to the High Court the legislative intent has to be respected 12) Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Art. 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35H in the earlier part of our order it is better to extract sub section which is relevant and we are concerned with in these “35H. Application to High Court The Commissioner of Central Excise or the other party may within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July 2003by application in the prescribed form accompanied where the application is made by the other party by a fee of two hundred rupees apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of Except providing a period of 180 days for filing reference application to the High Court there is no other clause for condoning the delay if reference is made beyond the said prescribed period. We have already pointed out that in the case of appeal to the Commissioner Section 35 provides 60 days time and in addition to the same Commissioner has power to condone the delay up to 30 days if sufficient cause is shown. Likewise Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub section Reliance was placed to Section 5 and Section 29(2) of the Limitation Act which read as under “5. Extension of prescribed period in certain cases. Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.” “29. Savings. Nothing in this Act shall affect section 25 of the Indian Contract Act 1872Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in sections 4 to 24shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law.” In this background let us examine the contentions raised by both sides. Learned Additional Solicitor General relying on the judgment of this Court in Union of India vs Popular Construction Co. 8 SCC 470 contended that in the absence of specific exclusion of the Limitation Act in the Central Excise Act in lieu of Section 29(2) of the Limitation Act Section 5 of the same is applicable even in the case of reference application to the High Court. The said decision arose under the Arbitration and Conciliation Act 1996. The question which arose for consideration in that case was whether provisions of Section 5 of the Limitation Act 1963 are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act 1996. In that case award was filed by the appellant Union of India in the Bombay High Court on 29.3.1999. The appellant filed an application challenging the award on 19.4.1999 under Section 30 read with Section 16 of the Arbitration Act 1940 Subsequently the application was amended by inserting the words “Arbitration and Conciliation Act 1996” in place of “Arbitration Act 1940”. The application was dismissed by the learned single Judge on 26.10.1999 on the ground that it was barred by limitation under Section 34 of the 1996 Act. The Division Bench rejected the appeal and upheld the findings of the learned single Judge. The said order was challenged in this Court. Though learned counsel for the appellant relied on the said decision in support of his claim on perusal of the same we are unable to concur with him. In paragraph 12 this Court held that as far as the language of Section 34 of the 1996 Act is concerned the crucial words used in the proviso to sub section are “but not thereafter” and this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result. Ultimately this Court dismissed the appeal filed by the Union of India and confirmed the order of the High Court holding that the application filed to set aside the award is barred by limitation 14) The next decision relied on by the learned ASG was in the case of Sharda Devi vs. State of Bihar 3 SCC 705. This relates to an appeal before the Letters Patent Bench in the High Court against judgment of Single Judge. While considering Section 54 of the Land Acquisition Act 1894 this Court held as under: “9. A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of appeal against a judgment of a Single Judge the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent 10. The question which thus arises is whether Section 54 of the said Act excludes an appeal under the Letters Patent Section 54 of the said Act reads as under “54. Appeals in proceedings before Court.—Subject to the provisions of the Code of Civil Procedure 1908 applicable to appeals from original decrees and notwithstanding anything to the contrary in any enactment for the time being in force an appeal shall only lie in any proceedings under this Act to the High Court from the award or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure 1908 and in Order 45 thereof.” It was argued that Section 54 of the said Act contains a non obstante clause containing the words “an appeal shall only lie”. After finding that Letters Patent is not an enactment it is the charter of the High Court this Court found that a non obstante clause of this nature cannot cover the charter of the High Court. By pointing out Section 54 it was contended that the said Act provides for only one statutory appeal to the High Court and then a further appeal to this Court. In other words it was submitted that on a plain reading of Section 54 it is clear that a Letters Patent Appeal would not lie against a judgment passed by a Single Judge of the High Court in an appeal under Section 54. On the other hand counsel appearing for the other side submitted that a Letters Patent Appeal would lie. Accepting the said contention this Court concluded that Section 26 of the said Act provides that every award shall be a decree and the statement of grounds of every award shall be a judgment. By virtue of the Letters Patent “an appeal” against the judgment of a Single Judge of a High Court would lie to a Division Bench. Section 54 of the said Act does not exclude an appeal under the Letters Patent. It was clarified that the word “only” occurring immediately after the non obstante clause in Section 54 refers to the forum of appeal. In other words it provides that the appeal will be to the High Court and not to any other court and the term “an appeal” does not restrict it to only one appeal in the High Court. It was explained that the term “an appeal” would take within its sweep even a Letters Patent Appeal. Though learned ASG heavily relied on the above three Judge Bench decision we are of the view that the said decision deals with Letters Patent power of the High Court. There is no dispute that the powers given to a High Court under the Letters Patent are akin to the constitutional powers of the High Court. In such circumstances when a Letters Patent grants to the High Court a power of appeal against a judgment of a Single Judge the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent. Inasmuch as the Letters Patent enables the High Court that the judgment of a Single Judge would lie to a Division Bench and of the fact that Section 54 of the Land Acquisition Act does not exclude an appeal under the Letters Patent the said decision is right in holding that under Section 54 there is no bar as to the maintainability of a Letters Patent Appeal. While there is no dispute about the power of the High Court under the Letters Patent jurisdiction we are of the view that the said analogy is not applicable to the cases on hand. 16) The other decision relied on by the counsel for the appellant is M.V. Elisabeth and Others vs Investment and Trading Pvt. Ltd. Hanoekar House Swatontapeth Vasco De Gama Goa 1993 Supp SCC 433. The learned ASG heavily relied on the following “66. The High Courts in India are superior courts of record They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of this Court the High Courts have unlimited jurisdiction including the jurisdiction to determine their Here again there is no dispute about the above proposition The High Courts in India are having inherent and plenary powers and as a Court of Record the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. However the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act particularly in this case Sections 35 35B 35EE 35G and 35H of the unamended Central Excise Act it would not be possible to hold that in spite of the above mentioned statutory provisions the High Court is free to entertain reference application even after expiry of the prescribed period of 180 days. 17) The other decision relied on is M.M. Thomas vs. State of Kerala and Another 1 SCC 666. This case arose out of the vesting of all private forests in the State of Kerala on the appointed day under the Kerala Private ForestsAct 1971. It is true that in para 14 it was held that the High Court as a court of record as envisaged in Article 215 of the Constitution must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court as a court of record has a duty to itself to keep all its records correctly and in accordance with law. Hence the High Court has not only power but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. In para 17 of the abovementioned decision it was held “17. If such power of correcting its own record is denied to the High Court when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the There is no doubt that the High Court possess all powers in order to correct the errors apparent on the face of record While accepting the above proposition in the light of the scheme of the Act we are of the view that the said decision is also not helpful to the stand taken by the appellant. In the earlier part of our order we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. Noida of the Act the two Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises vs. Commissioner of Central Excise Jamshedpur and Others 2008) 3 SCC 70 concluded that “the High Court was justified in holding that there was no power for condonation of delay in filing reference 19) As pointed out earlier the language used in Sections 35 35B 35EE 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period there is complete exclusion of Section 5 of the Limitation Act. The High Court was therefore justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise for filing an appeal to the Commissioner and to the Appellate Tribunal as well as revision to the Central Government the legislature has provided 60 days and 90 days respectively on the other hand for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time namely 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 20) Though an argument was raised based on Section 29 of the Limitation Act even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. In other words the applicability of the provisions of the Limitation Act therefore to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation limitation cannot be extended by invoking the provisions of Section 5 of the Act. In the light of the above discussion we hold that the High Court has no power to condone the delay in filing the “reference application” filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. In view of the above conclusion we confirm the decision of the High Court. Hence all the appeals are accordingly dismissed. No costs.

State of Rajasthan vs. Firoz Khan @ Arif Khan

That it is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code [Case Brief] State of Rajasthan vs. Firoz Khan @ Arif Khan Case name: State of Rajasthan vs. Firoz Khan @ Arif Khan Case number: CRIMINAL APPEAL NO. 750 OF 2006 Court: Supreme Court of India Bench: Abhay Manohar Sapre, J. Ashok Bhushan J. Decided on: 17th May, 2016 Relevant Act/Sections: Section 378(3) of the Criminal Procedure Code   This appeal is filed by the State of Rajasthan against the final judgment and order dated 28.10.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Leave to Appeal No. 227 of 2005 whereby the Division Bench of the High Court dismissed the application filed by the appellant herein seeking leave to file appeal under Section 378(3)of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”) against the judgment dated 13.08.2004 passed by the Sessions Judge, Jaisalmer in Sessions Trial Case No. 48 of 2002.The respondent (accused) was prosecuted and tried for commission of an offence of murder of one Liley Khan aged around 11 years under Section 302of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) pursuant to lodging of FIR No 44/2002 in Police Station Ramgarh, District Jaisalmer in Sessions Trial Case No. 48 of 2002 in the Court of District and Sessions Judge, Jaisalmer. The prosecution adduced evidence in support of their case.By judgment dated 13.8.2004, the Session Judge on appreciating the evidence adduced by the prosecution acquitted the respondent of the charge of murder by giving him benefit of doubt. The State of Rajasthan, felt aggrieved of respondent’s acquittal, filed application for leave to appeal before the High Court under Section 378 (3) of the Code. By impugned order, the High Court declined to grant leave and accordingly rejected the application made by the State. It is against this order, the State has filed this appeal by way of special leave petition. Notice of lodgment of petition of appeal was served on the respondent but despite service of notice, the respondent has not appeared.Learned counsel for the appellant-State has made only one submission. According to him, the High Court while dismissing the application for leave to appeal did not assign any reason and hence the impugned order is rendered bad in law. It was his submission that there were several discrepancies and errors in the judgment of the Sessions Judge against which the leave to appeal was sought and, therefore, this was a fit case where the High Court should have granted leave to appeal for further probing into the case by the appellate court. Hence the present appeal ISSUE BEFORE THE COURT: How the application for grant of leave to appeal made under Section 378 (3) of the Code should be decided by the High Court?What are the parameters which the High Court should keep in mind remains no more res Integra? RATIO OF THE COURTThe court observed that this issue was examined by the Court in State of Maharashtra vs. Sujay Mangesh Poyarekar where it was held that it is necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code.The court also observed that it is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code. In courts opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.The court observed that the High Court grossly erred in passing the impugned order without assigning any reason. In the considered opinion of court, it was a clear case of total non application of mind to the case by the learned Judges because the order impugned neither sets out the facts nor the submissions of the parties nor the findings and nor the reasons as to why the leave to file appeal is declined to the appellant, therefore, it was disapproved the casual approach of the High Court in deciding the application. The court observed that this issue was examined by the Court in State of Maharashtra vs. Sujay Mangesh Poyarekar where it was held that it is necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code.The court also observed that it is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code. In courts opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.The court observed that the High Court grossly erred in passing the impugned order without assigning any reason. In the considered opinion of court, it was a clear case of total non application of mind to the case by the learned Judges because the order impugned neither sets out the facts nor the submissions of the parties nor the findings and nor the reasons as to why the leave to file appeal is declined to the appellant, therefore, it was disapproved the casual approach of the High Court in deciding the application. DECISION HELD BY COURT:The appeal thus succeeded and was accordingly allowed and the impugned order is set aside. The case was remanded to the High Court for deciding the application made by the appellant for grant of leave to appeal afresh on merits in accordance with law keeping in view the law laid down by this Court in State of Maharashtra vs. Sujay Mangesh Poyarekar (supra).The court held that since no one appeared in this Court for the respondent despite notice to him, the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as directed. The appeal thus succeeded and was accordingly allowed and the impugned order is set aside. The case was remanded to the High Court for deciding the application made by the appellant for grant of leave to appeal afresh on merits in accordance with law keeping in view the law laid down by this Court in State of Maharashtra vs. Sujay Mangesh Poyarekar (supra).The court held that since no one appeared in this Court for the respondent despite notice to him, the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as directed.    

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 750 OF 2006 State of Rajasthan Firoz Khan @ Arif Khan JUDGMENT Abhay Manohar Sapre J This appeal is filed by the State of Rajasthan against the final judgment and order dated 28.10.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Leave to Appeal No. 2205 whereby the Division Bench of the High Court dismissed the application filed by the appellant herein Page 1 seeking leave to file appeal under Section 378(3) of the Criminal Procedure Code 1973against the judgment dated 13.08.2004 passed by the Sessions Judge Jaisalmer in Sessions Trial Case No. 402. 2) Keeping in view the short point involved in the appeal it is not necessary to state the facts in detail except few to appreciate the grievance of the The respondentwas prosecuted and tried for commission of an offence of murder of one Liley Khan aged around 11 years under Section 302 of the Indian Penal Code 1860pursuant to lodging of FIR No 44 2002 in Police Station Ramgarh District Jaisalmer in Sessions Trial Case No. 402 in the Court of District and Sessions Judge Jaisalmer. The Page 2 prosecution adduced evidence in support of their By judgment dated 13.8.2004 the Session Judge on appreciating the evidence adduced by the prosecution acquitted the respondent of the charge of murder by giving him benefit of doubt The State of Rajasthan felt aggrieved of respondent s acquittal filed application for leave to appeal before the High Court under Section 3789 SCC 475. Page 4 10) We are inclined to agree in part with the submission urged by the learned counsel for the 11) The question as to how the application for grant of leave to appeal made under Section 378declares that no appeal “shall be entertained except with the leave of the High Court”. It is therefore necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub section of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the Page 5 application filed under sub section of Section 378 of the Code 20. In our opinion however in deciding the question whether requisite leave should or should not be granted the High Court must apply its mind consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and hence no leave should 24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases the appellate court must consider the relevant material sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons may be in brief) in support of such view are recorded the order of the court may not be said to be illegal or objectionable. At the same time however if arguable points have Page 6 been raised if the material on record discloses deeper scrutiny and reappreciation review or reconsideration of evidence the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand the High Court with respect did neither. In the opinion of the High Court the case did not require grant of leave. But it also failed to record reasons for refusal of such 12) Coming now to the facts of this case it is apposite to reproduce the impugned order in No case for grant of leave is made out. Accordingly the leave to appeal stands 13) We are constrained to observe that the High Court grossly erred in passing the impugned order without assigning any reason. In our considered opinion it was a clear case of total non application of mind to the case by the learned Judges because the order impugned neither sets out the facts nor the submissions of the parties nor the findings and nor the reasons as to why the leave to file appeal is Page 7 declined to the appellant. We therefore disapprove the casual approach of the High Court in deciding the application which in our view is against the law laid down by this Court in the case of State of Maharashtra vs. Sujay Mangesh Poyarekar In the light of foregoing discussion the impugned order deserves to be set aside. The appeal thus succeeds and is accordingly allowed and the impugned order is set aside. remanded to the High Court for deciding the application made by the appellant for grant of leave to appeal afresh on merits in accordance with law keeping in view the law laid down by this Court in State of Maharashtra vs. Sujay Mangesh It is made clear that we have not applied our mind to the merits of the case and remanded the Page 8 case having noticed that it was an unreasoned order. The High Court will accordingly decide the application on merits uninfluenced by any of our observations made in this order 16) Since the case is old we request the High Court to decide the matter within three months from the date of receipt of this order. Since no one appeared in this Court for the respondent despite notice to him the High Court will issue a fresh notice of the application for grant of leave to the respondent and then decide the application as . ...................................J [ABHAY MANOHAR SAPRE …..................................J [ASHOK BHUSHAN New Delhi May 17 2016

Legal action against respondent for their breach of contract and cheating, Bihar Protection of Depositors’ Interests (In Financial Establishment) Act, 2002: Patna High Court

Appropriate legal action against respondent for their breach of contract and cheating is available under the Bihar Protection of Depositors’ Interests (In Financial Establishment) Act, 2002, and the corresponding Rule of 2004 and the problem of limitation will not prevent the matter from being decided on its merits is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA in the case of Shree Nath Pathak Vs. The Union of India through the Principal Secretary (Civil Writ Jurisdiction Case No.10116 of 2021) Brief facts of the case are that the petitioner has asked for the issuance of an appropriate writ/writs, direction/s, and order/s commanding the respondents to pay the petitioner’s maturity amount/due amount forthwith, which was deposited by the petitioners to the respondent at the office of respondent in the name of investment, as well as any consequential benefit that the petitioner is entitled to in light of the facts and circumstances of the case. The petitioner has requested for an order directing respondent to pay interest at 18 percent per annum on the sum invested by the petitioner until the date of final payment, as well as compensation for the respondent company’s mental and economic harassment. The petitioner has requested that a criminal case be filed against the respondent for his intentional omissions and commissions and a direction to take appropriate legal action against respondent for their breach of contract and cheating with the petitioners. The petitioner has an equally effective remedy under the terms of the Bihar Protection of Depositors’ Interests (In Financial Establishment) Act, 2002, and the corresponding Rule of 2004, and the concerns stated in the current lis can be simply adjudicated by the authority stipulated as in case of Ashok Kumar Singh Vs. the Union of India and Ors dismissed a similar petition. As a result, the petitioner is free to pursue the remedies set forth in the Act and according to Shri Ajay Kumar Rastogi, learned Additional Advocate General, if such a petition is filed within four weeks, the problem of limitation will not prevent the matter from being decided on its merits. The petition is dismissed, and the petitioner has four weeks to pursue the Act’s remedies and the issue of limitation, if any, will not prevent the matter from being decided on its merits. The parties will be given the opportunity to record any necessary documents and materials, if so requested and desired. Petitioner, through counsel, agrees to fully cooperate and not take any unnecessary adjournments. Within six months of taking recourse to remedies under the Act, the appropriate authority shall decide the matter on the merits, in accordance with natural justice principles, and pass a reasoned and speaking order. Click here to read the judgment Judgement reviewed by – Pooja Lakshmi    

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.101121 Shree Nath Pathak Son of Late Sidhnath Pathak resident of 187 M.I.G House Hanuman Nagar P.S. Patrakar Nagar District Patna Smt. Usha Pathak wife of Shree Nath Pathak resident of 187 M.I.G House Hanuman Nagar P.S. Patrakar Nagar District Patna ... Petitioner s The Union of India through the Principal Secretary Department of Finance Government of India New Delhi The General Manager Securities and Exchange Board of IndiaAct 2002 and the corresponding Rule of 2004. We find the petitioner has equally alternate efficacious remedy and the issues raised in the present lis can be easily adjudicated by the authority stipulated under the provisions. We also notice that in one such similar matter learned Single Judge in C.W.J.C. No. 50519 titled as Ashok Kumar Singh Vs the Union of India and Ors. has already dismissed similar As such liberty is granted to the petitioner to take recourse to the remedies under the Act. Shri Ajay Kumar Rastogi learned Additional Advocate General No. 10 states that if such petition is preferred within four weeks issue of limitation shall not come in the way of deciding the matter on merits. As such petition stands disposed of in the following mutually agreeable terms: a) Petitioner is permitted to take recourse to the remedies under the Act within a period of four weeks from today b) In the event of taking appropriate recourse to Patna High Court CWJC No.101121 dt.03 01 2022 the remedies under the Act within a period of four weeks from today the issue of limitation if any shall not come in the way of adjudication of the matter on merits c) Opportunity shall be granted to the parties to place on record all essential documents and materials if so required and desired d) Petitioner through learned counsel undertakes to fully cooperate and not take unnecessary e) The appropriate authority shall decide the matter on merits in compliance of the principles of natural f) The appropriate authority shall pass a reasoned and speaking order within a period of six months from the date of taking recourse to remedies under the Act g) Copy of the order passed by the appropriate authority shall be supplied to the parties h) Equally liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law i) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available Patna High Court CWJC No.101121 dt.03 01 2022 in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable j) We have not expressed any opinion on merits and all issues are left open k) Liberty reserved to the petitioner to challenge the order before the appropriate forum if required and desired The instant petition sands disposed of in the aforesaid Interlocutory Application(s) if any stands disposed terms. Sanjay Karol CJ) ( Sanjeev Prakash Sharma J

Authority concerned shall initiate encroachment proceedings and decide the encroachment case to its logical conclusion: Patna High Court

Authority shall initiate encroachment proceedings against encroachers and decide the encroachment case to its logical conclusion within a short period of time by removing the encroachment made by encroachers over the land 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 Shyam Kishor Vs. The State of Bihar (Civil Writ Jurisdiction Case No.1 of 2022) Brief facts of the case are that the petitioner has asked for the issuance of an appropriate writ/writs, order/orders, direction/directions in the nature of mandamus directing the respondent  to initiate encroachment proceedings against the private other respondent encroachers and to decide the encroachment case to its logical conclusion within a short period of time by removing the encroachment made by encroachers/private respondent  over the land bearing Tauzi No. 11631, Khata No. 684, Khesara No. 2578, area 35 decimal, Thana No. 20 situated in village Hawanpura, Block- Rahui,  Nalanda District. Learned counsel for the petitioner states that the petitioner will be satisfied if a direction is issued to the authority concerned (respondent no.4, The Circle Officer, Rahui, District-Nalanda) to consider and decide the representation that the petitioner will be filing for redress of the grievance within a period of four weeks. According to learned counsel for the respondents, if the petitioner files such a representation, the authority concerned must consider and dispose of it promptly, preferably within three months of its filing, along with a copy of this order. Petitioner shall approach the authority concerned within four weeks by filing a representation for redress of the grievance, and the authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within three months from the date of filing, along with a copy of this order. The petitioner also has the option of addressing the petition in order for it to be listed as a priority. Registry will take steps to list the petition as soon as possible if such a mention is made, and the court has not stated any opinion on the merits. All issues are unresolved. Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22 Shyam Kishor Son of Munsi Singh Resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Nalanda ... Petitioner s The State of Bihar through Principal Secretary Revenue and Land Reforms Bihar Patna The District Magistrate cum Collector Nalanda The Sub Divisional Officer Bihar Sharif District Nalanda The Circle Officer Rahui District Nalanda Santosh Kumar @ Bambam Singh Son of Late Rajendra Singh Resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Bholi Singh Son of Late Rajendra Singh 7. Munna Kumar Son of Late Awadhesh Singh Sachin Kumar Son of Late Awadhesh Singh Chandan Kumar Singh Son of Ram Bahal Singh 10. Ram Ekbal Singh Son of Late Baleshwar Singh Respondent No. 5 to 10 all resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Nalanda ... Respondent s Mr.Raj Bansh Dubey Advocate Mr.Md. Khurshid AlamDate : 11 01 2022 Patna High Court CWJC No.22 dt.11 01 2022 Heard learned counsel for the parties Petitioner has prayed for the following relief(s): “(i) For issuance of an appropriate direction order orders directions in the nature of mandamus directing the respondent no.4 to initiate the encroachment proceedings against the private respondent no.5 to 10 encroachers and decide the encroachment case to its logical conclusion within short span of time by removing the encroachment made by encroachers private respondent no.5 to 10 over the land bearing Tauzi No. 11631 Khata No. 684 Khesara No. 2578 area 35 decimal Thana No. 20 situated in Hawanpura Block Rahui village District Nalanda ii) For grant of any relief(s) the petitioner would be found entitled to in the facts and circumstances of the case.” The Hon’ble Supreme Court in D. N. Jeevaraj Vs Chief Secretary Government of Karnataka & Ors 2 SCC 653 paragraphs 34 to 38 observed as under: “34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard. 35. However we note that generally speaking procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P Rural Litigation and Entitlement Kendra v. State of U.P. 1989 SuppSCC 504] to this effect as follows SCC p. 515 para 16 “16. The writ petitions before us are not inter Patna High Court CWJC No.22 dt.11 01 2022 parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court.” 36. A considerable amount has been said about public interest litigation in R&M Trust3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance the courts ought to be somewhat more liberal in entertaining public interest litigation However in matters that may not be of moment or a litigation essentially directed against one organisation or individualought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies 37. In such cases that might not strictly fall in the category of public interest litigation and for which other remedies are available insofar as the issuance of a writ of mandamus is concerned this Court held in Union of India v. S.B. Vohra 2 SCC 150: 2004 SCC363] that SCC p. 160 paras 12 13 Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King s Bench directing performance of a public legal duty 13. 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 Patna High Court CWJC No.22 dt.11 01 2022 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.” 38. A salutary principle or a well recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v Union of India 2 SCC 630] in the following words:Vol. 11 p. 106 ‘198. Demand for performance must precede application.—As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.’ 25. In the cases before us there was no such demand or refusal. Thus no ground whatsoever is shown here for the issue of any writ order or direction under Article 226 of the After the matter was heard for some time learned counsel for the petitioner under instructions states that Patna High Court CWJC No.22 dt.11 01 2022 petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the Learned counsel for the respondents states that if such a representation is filed by the petitioner the authority concerned shall consider and dispose it of expeditiously and preferably within a period of three months from the date of its filing along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s) b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of three months from the date of its filing along with a copy of this order c) Needless to add while considering such Patna High Court CWJC No.22 dt.11 01 2022 representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch Liberty reserved to the petitioner to approach the Court if the need so arises subsequently on the same and subsequent cause of action g) Liberty also reserved to the petitioner to make a mention for listing of the petition on priority basis. As and when any such mention is made Registry shall take steps for listing the petition at the earliest. h) We have not expressed any opinion on merits. All issues are left open i) The proceedings during the time of current Pandemic Covid 19 shall be conducted through digital mode unless the parties otherwise mutually agree to meet in person i.e. physical mode Patna High Court CWJC No.22 dt.11 01 2022 The petition stands disposed of in the aforesaid terms. Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Person belonging to SC-ST category in a particular state cannot claim benefits in other states after migrating to them : Supreme Court

The quota benefits that are given to SC-ST persons are available to that person in that state only, the person cannot exercise those benefits in some other states as this goes against the basic object of enacting this provision and in the present case this provision existed under section 42 of Rajasthan Tenancy Act 1955 that has been further elaborated upon by Justice M R Shah and Justice A S Bopanna in the case of BHADAR RAM V. JASSA RAM [CIVIL APPEAL No. 5933 OF 2021] In the present case the purchaser of a land belonged to Scheduled Caste in the State of Punjab and he entered into a sale of his land in the State of Rajasthan against which he seeks to claim benefit under section 42 of Rajasthan Tenancy Act 1955. The issue before Supreme Court was that should a person who belongs to Schedule Caste in some other state be given the same benefit under section 42 of Rajasthan Tenancy Act 1954 or not. The Supreme Court in this case held that even though this subject matter is “res integra” they ruled any person not belonging to scheduled caste in that state should not be given the benefit of section 42 of the act provided the land is given to a schedule caste landless person. The Supreme Court, hence agreeing with the decision of the Rajasthan High Court held that considering the scheduled caste resident belonged to Punjab and was not given that piece of land as a landless, this is not a violation of section 42 of Rajasthan Tenancy Act. The court further held that every act is enacted with a purpose and has an object that has to be fulfilled, in the present judgement there was only a clarification given that stopped misusing the provisions of tenancy act. Any land given to a schedule caste person is not only for monetary gain but also as a resource that he may use to multiply his resources, this is not a freebie given to him and it must not be disposed for money. A person belonging to a state and residing there who is applying the bar on transferring of property in another state is frivolous because he would not have been given that land as a landless schedule caste and as seen in this judgement such benefits are not even given to him as a result of him migrating to that state as Justice MR Shah also rightly observed that “looking at the object and purpose of such a provision, it can be said that the said provision is to protect a member of the scheduled caste belonging to the very state he belongs” which in the said case is Rajasthan but the defendant being a scheduled caste belonging to Punjab and a permanent resident of that state cannot claim the benefit.  

2022 LIVELAW10 Feeling aggrieved and dissatisfied with the impugned judgment and order dated 07.04.2011 passed by Division Bench of High Court has allowed the said Appeal 2022 LIVELAW10 preferred by the respondent herein original plaintiff the village Dharamsinghwala Tehsil Sadulshahar District Sri Ganganagar Rajasthan. The said land was allotted to one respondent original plaintiff in the year 1972 the said the sale deed in favour of the appellant herein original 2022 LIVELAW10 Colonization Act 1954. The said suit came to be decreed by the learned trial Court vide judgment and decree dated Singh who was not a Scheduled Caste person and that the sale deed is in violation of Section 13 of the Rajasthan the Rajasthan Tenancy Act 1955 and therefore the said Puran Singh is liable to be evicted. As per the case of the learned trial Court. The possession was found to be with dissatisfied with the judgment and order decree passed by 2022 LIVELAW10 original defendant filed the Appeal before the Board of Revenue which came to be allowed vide order dated Feeling aggrieved and dissatisfied with the order passed by the Board of Revenue the respondent original dismissed the said Writ Petition vide judgment and order dated 15.09.1999. The respondent original plaintiff judgment and order passed by the learned Single Judge 2022 LIVELAW10 the resident and Scheduled Caste belonging to the State of Punjab he could not have taken the benefit of his being Feeling aggrieved and dissatisfied with the of the High Court the appellant ­ original defendant purchaser of the land in question has preferred the present Learned Counsel appearing on behalf of the 2022 LIVELAW10 sale between the members of Scheduled Caste and that the appellant original defendant has been allegedly used by Rajasthan Tenancy Act. It is submitted that thus the respondent original plaintiff admitted that the appellant original defendant is the Member of Scheduled Caste and there was never a proper formal issue framed qua the ordinary status of the appellant original defendant for adequate evidence could not be presented though the It is submitted that after amendment of 1983 1954 which permits compounding and regularization of the transaction executed without the permission as required 2022 LIVELAW10 is submitted that as submitted hereinabove the main thrust Rajasthan Colonization Act 1954. It is submitted that only original plaintiff shifted the focus to Section 42 of the not make him an ordinarily resident of Punjab. Reliance is placed on Section 20(1) of the Representation of People Act aspect is was required before residential status is finally 2022 LIVELAW10 Learned Counsel appearing on behalf of the of the Action Committee on the issue of caste certificate to Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another is concerned it is not anywhere discussed a situation where a person having and at that time the issue of Scheduled Caste status being even the said decision also only discuses Scheduled Caste 2022 LIVELAW10 out of one’s own fund i.e. for lawful consideration from other limitation and is essentially a free act determined in open market regulated only to the extent of its mode of execution by law and has to be looked as such. It is submitted that the appellant original defendant therefore plaintiff cannot be permitted to question 1972 sale in 1977 itself goes to show mala fides of the respondent original plaintiff and abuse of process of law thereafter to deny appellant original defendant his rightful land. It is submitted that the consideration received has been retained 2022 LIVELAW10 appellant original defendant has been depositing compounding fees in terms of Section 13A of the Rajasthan Colonization Act 1954 and therefore he should not be denied the present Appeal and quash and set aside the impugned The present Appeal is vehemently opposed by Ms Christi Jain learned counsel appearing on behalf of the is a member of Scheduled Caste in Punjab where he is residing can claim the benefit of Scheduled Caste in Rajasthan in relation to Section 42 of the Rajasthan State of Uttarakhand & Ors. in Civil Appeal 2022 LIVELAW10 No.8425 2013. It is submitted that after considering two Shekar Rao Vs. Dean Geth G.S. Medical College and Others 3 SCC 130 and Action Committee on Issue is held that merely because in the migrant State the same recognized as Scheduled Caste of the migrant State. It is submitted that therefore applying the law laid down by this State of Punjab and being a member of Scheduled Caste in State of Punjab cannot claim benefit of Scheduled Caste in Rajasthan and therefore the transaction between the 2022 LIVELAW10 Singh Vs. Delhi Jal Board 10 SCC 312 10 submitted that even otherwise the appellant original submitted that in the bainama his address is shown as Village Burajwala Tehsil Fajilka District Firozpur Punjab and he is resident of Punjab. It is submitted that in the In the cross examination he has submitted that he was was in fact a resident of Rajasthan and had migrated to It is submitted that the appellant original defendant claims to be a resident of Rajasthan only on the ground that his grandfather had land in Rajasthan. It is 2022 LIVELAW10 land was found to be in possession of Puran Singh. The possession is found to be with Puran Singh when the original plaintiff in pursuance to the order passed by the learned trial Court. It is submitted that therefore the sale It is submitted that even otherwise the Board of Revenue could not have given the benefit of compounding the transferee was in possession. In the present case the transferee appellant was not in possession and therefore 2022 LIVELAW10 appellant original defendant. The permission of up to 13.06.1987 whereas Board has exercised it on Heard learned Counsel appearing on behalf of the respective parties at length. The short question which is Act 1955 and Section 13 of the Rajasthan Colonization Act 2022 LIVELAW10 It is not in dispute that the land in question is was allotted to one Chunilal father of the respondent original plaintiff being a Scheduled Caste landless person According to the respondent original plaintiff the said said Puran Singh fraudulently made Chunilal to sign a sale deed in favour of the appellant herein Bhadar Ram a resident of Punjab. Thus according to the respondent original plaintiff in effect the sale was in favour of the said executed in favour of the appellant herein Bhadar Ram throughout the land was in possession of the said Puran the judgment and decree passed by the learned trial Court when the possession was handed over to the respondent 2022 LIVELAW10 2022 LIVELAW10 he can be said to be the permanent resident of State of purchaser of the land in question situated in the State of Rajasthan it is to be noted that in bainama his address is shown as Village Burajwala Tehsil Fajilka District Firozpur that of Punjab. In the cross examination he has admitted that he was a resident of Punjab. However according to the to be an ordinarily resident of State of Rajasthan. The 2022 LIVELAW10 ‘Ordinarily Resident’ has been defined under the Representation of the People Act 1950. As per Section 20(1) of the Representation of the People Act 1950 ‘ordinarily said that the appellant original defendant is an ordinarily Now whether the sale transaction in favour of the Section 42 of the Rajasthan Tenancy Act 1955 is concerned it Act 1955 there is a restriction on sale gift or bequest by a member of Scheduled Caste. Looking to the object and purpose of such a provision it can be said that the said provision is to protect a member of the Scheduled Caste 2022 LIVELAW10 of Punjab whether the sale transaction in favour of the now not res integra. In the case of Marri Chandra Shekar “10. It has however to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and and handicaps suffered by belonging to a socially disadvantageous community do not continue and girl gets full scope to flourish. These however are has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate or community should cause detriment or discontentment to other community or part of community or section. Scheduled Castes and to the extent they are entitled in order to become equal with others. But equally those who go to 2022 LIVELAW10 areas. In other words Scheduled Castes and necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case do require protection in the State of Maharashtra which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic approach in mind then the determination of the controversy in the instant case does not become that the Scheduled Castes and Scheduled Tribes in some the facilities for development and growth and therefore in suffered and are in the state of underdevelopment to have reservations or protection in their favour so that they can compete on equal terms with the more advantageous or developed sections of the community a particular caste who has suffered more in a particular State might be given 2022 LIVELAW10 the State of Maharashtra and Another after considering the decision of this Court in the case of Marri 2022 LIVELAW10 341 and 342 it is manifest that the power of the which shall for the purposes of the Constitution be in relation to a State or a Union Territory as the case may be. Once a notification is issued under clause of Articles 341 and 342 of the Constitution Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification any notification issued under clause shall not be varied by any subsequent notification. What is to the State or Union Territory for which it is specified. These are the relevant provisions with “16. We may add that considerations for specifying a particular caste or tribe or class for 2022 LIVELAW10 another State to which persons belonging thereto which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same to the former would be entitled to the rights privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect to a question by Mr Jaipal Singh Dr Ambedkar He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area India which is outside both the scheduled area and the tribal area will he be able to claim from the local may be residing the same privileges residing within the scheduled area or within the tribal area It is a difficult is agitated in quarters where a decision 2022 LIVELAW10 in this Constitution. But so far as the a Scheduled Tribe going outside the scheduled area or tribal area would he is residing in a scheduled area or a practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas in areas other than Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to The decision of this Court in the case of Action Committee on Issue of Caste Certificate to Scheduled the Court was considering the issue with respect to 2022 LIVELAW10 Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Constitution of India which are referred to hereinabove. We Court in the case of Action Committee on Issue of Caste the State of Maharashtra and Another only with 2022 LIVELAW10 a Three Judge Bench of this Court had an occasion to consider the same issue. Before this Court the appellant belonged to Valmiki Caste 10 Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand as in the present case cannot dilute Marri Chandra Shekar Rao and Action In view of the above the appellant original defendant being a Scheduled Caste belonging to State of land belonging to a Scheduled Caste person of State of Caste landless person and therefore as rightly held by the Division Bench of the High Court the sale transaction in favour of the appellant original defendant was in clear breach and or in violation of Section 42 of the Rajasthan 2022 LIVELAW10 Even otherwise in the facts and circumstances of the case the sale transaction in favour of the appellant ­ the Rajasthan Colonization Act 1954. It is required to be noted that the Board of Revenue granted the benefit of Board permitted the appellant ­ original defendant to pay compounding fees and regularized the transaction. However it is required to be noted that when the Board of Revenue order of ejection of the appellant ­ original defendant was already passed against him and Puran Singh and the possession was already handed over to the respondent original plaintiff from Puran Singh who was found to be in 13(A)(2) of the Rajasthan Colonization Act 1954 would be 2022 LIVELAW10 been passed has not actually been ejected from the land transferred. In that view of the matter no order of compounding in favour of the appellant ­ original defendant and or even Puran Singh could have been passed by the of the Rajasthan Colonization Act 1954 and therefore also Section 13A(2) of the Rajasthan Colonization Act 1954 and therefore also the land transaction in question is hit by In view of the above and for the reasons stated original defendant was in breach of Section 13 of the Rajasthan Colonization Act 1954 and Section 42 of the Rajasthan Tenancy Act 1955 which is rightly held to be void 2022 LIVELAW10 the circumstances the present Appeal fails and the same deserves to be dismissed and is accordingly dismissed However in the facts and circumstances of the case there

A wife has the right to live at her husband’s co-owned property: High Court of Delhi

Right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955. A co-owned house by the husband provides the necessary protection to a wife to live at the house entitling her to claim a right to residence in a shared household, which would mean a house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE CHANDRA DHARI SINGH in the case of OM PRAKASH GUPTA & ANR vs. ANJANI GUPTA & ANR [CRL.M.A. 15072/2021] on 08.03.2022. The facts of the case are that Marriage between the Respondent and the son of the Petitioners, Mr. Alok Gupta, was solemnized according to Hindu rites and rituals and Petitioner is the father-in-law of the Respondent. The relationship between the Respondent and her in-laws was cordial in the beginning, however, it started to deteriorate with time. The Respondent left her matrimonial home. Consequently, more than 50 cases, both civil and criminal, were filed by the parties against each other. One of these cases were initiated by the Respondent under the Protection of Women from Domestic Violence Act, 2005, and during the proceedings the Respondent claimed right to residence in the property wherein the husband of the Petitioner is the 50 percent owner of the co-owned house. The petitioner’s counsel submitted that the learned Appellate Court while passing the Order failed to address various issues raised by the Petitioner before it. It was submitted that the Appellate Court wrongly upheld the right of residence to the Respondent as the said premises were in the name of the wife and son of the Petitioner, therefore, the Respondent had no reason to claim the right in the said property. The respondent’s counsel submitted that the premises in question, is the matrimonial home of the Respondent and she has been rightfully entitled to residence in the said property by the learned Metropolitan Magistrate. The right to residence of the Respondent arises out of the 50 per cent ownership of her husband in the said premises. The Court held that the Respondent has a right to live at her husband’s co-owned property and that the fact of likelihood of filing of cases against the Petitioners cannot affect the Respondent’s right to live at her matrimonial house. The Court observed that, “right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955. A co-owned house by the husband provides the necessary protection to a wife to live at the house entitling her to claim a right to residence in a shared household, which would mean a house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : Pronounced on: 19th January 2022 8th March 2022 CRL.M.C. 5188 2013 CRL.M.A. 18680 2013 CRL.M.A. 2588 2014 CRL.M.A. 13863 2015 CRL.M.A. 13028 2016 CRL.M.A. 14219 2016 CRL.M.A. 15076 2016 CRLM.A. 3921 2018 CRL.M.A. 31742 2019 CRL.M.A. 10828 2021 & CRL.M.A. 15072 2021 OM PRAKASH GUPTA & ANR Through: Mr. Anurag Jain Advocate. ….. Petitioners ANJANI GUPTA & ANR ..…Respondents Through: Mr. Arvind Varma Sr. Advocate with Mr. Abhishek Chhabra Advocate for R 1 along with R 1 in person Mr. Raghuvinder Varma APP for R 2 State HON’BLE MR. JUSTICE CHANDRA DHARI SINGH CHANDRA DHARI SINGH J. JUDGMENT The present petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973 against Order dated 5th December 2013 passed by learned Additional Sessions Judge 02 Special Judge(hereinafter “ASJ”) East Karkardooma Courts Delhi in Criminal Appeal No. 104 13 titled „Om Prakash Gupta vs Anjani Gupta‟ whereby learned ASJ was pleased to confirm the residence Orders dated 1st November 2013 in favour of Respondent No.1. CRL.M.C. 5188 2013 FACTUAL MATRIX 2. Marriage between the Respondent No.1and the son of the Petitioners Mr. Alok Gupta was solemnized on 30th January 1990 according to Hindu rites and rituals and Petitioner No. 1 since deceased) and Petitioner No. 2 are the mother in law and father in law respectively of the Respondent. Petitioner No. 1 has been represented by her Legal Representatives Mr. Alok Gupta as Petitioner No. 2(a) Mr. Anurag Gupta as Petitioner No. 2 b) and Ms. Sarika Gupta as Petitioner No. 2and during the proceedings the Respondent claimed right to residence in the property bearing no. A 41 Swasthya Vihar Delhi 110092. The DV Act matter registered as No. V 275 12 was heard by the learned Metropolitan Magistrate Mahila Court East District Karkardooma Courts New Delhi and learned Metropolitan Magistrate passed the Order dated 1st November 2013 wherein it was observed that the husband of the Petitioner is the 50 percent owner of the co owned house bearing no. A 41 Swasthiya Vihar Delhi 110092 the Respondent was residing on the first floor of the said matrimonial home till the day she was dispossessed from the house that is on 16th CRL.M.C. 5188 2013 September 2011 and that there was a prima facie case that the husband of the Respondent was having an illicit affair. The learned Metropolitan Magistrate held that in view of the above facts the Respondent herein was entitled to the right of residence in the first floor of the abovementioned property. Aggrieved by the said Order the Petitioner filed Criminal Appeal No. 104 13 on summarily the following grounds:  The property was in exclusive possession of the petitioners against one of whom the respondent had levelled charges of sexual assault.  The respondent had a right to live with her husband as a wife however by allowing her to live at Swasthya Vihar while her husband is living at Indirapuram the Trial Court did not take care of the fact that parties may eventually get separated because of the order of right to residence.  The wife s right of residence is co existence with the husband and she cannot claim a right of residence at a place where her husband is not residing.  The respondent contested the petition under Section 9 of the Hindu Marriage Act 1955 and lived away from the son of petitioner for 1½ year she therefore should not have been allowed to live in the house where her husband was not  The respondent levelled allegations of sexual assault against father in law and allowing her to live in the said house CRL.M.C. 5188 2013 would give an opportunity to her to keep filing frivolous  The respondent is guilty of adultery and on this ground case of divorce had been filed against her.  There is only one entrance one electricity connection and one water connection in the house and two parties having strained relations cannot live under such circumstances. facts and circumstances before it and while passing the Order dated 5th December learned Appellate Court considered 2013 upheld the Order passed by learned Metropolitan Magistrate dated 1st November 2013 of residential right passed in favour of the Respondent observing that the Respondent had been living in the said premises since her marriage and her husband was the 50 per cent share holder to the house which gave her the right to continue to live there in light of the judgment of SR Batra vs Tarun Batra 3 SCC 169. However with respect to the observations of the learned Trial Court with respect to the adultery in question learned Appellate Court observed that as such the ground which weighed in the mind of the learned Trial Court at the time of passing the interim order thus did not seem prima facie a valid ground. The Petitioner has impugned the Order of the Appellate Court dated 5th December 2013 before this Court in the instant Petition. On 11th December 2013 the Petitioners obtained ex parte ad interim stay from a co ordinate bench of this Court with respect to the CRL.M.C. 5188 2013 right of residence passed in favour of the Respondent which was extended on the various subsequent dates. Learned counsel appearing on behalf of the Petitioner submitted that the learned Appellate Court while passing the Order dated 5th December 2013 failed to address various issues raised by the Petitioner before it. It is submitted that the Appellate Court wrongly upheld the Order of the learned Trial Court dated 1st November 2013 whereby the right of residence was granted to the Respondent herein. It is submitted that the Respondent left her matrimonial home on her own accord and did not return thereafter. However she filed for the right to residence with respect to the property bearing no. A 41 Swasthya Vihar Delhi 110092 during the DV Act proceedings. The said premises were in the name of the wife and son of the Petitioner and the Respondent has no reason to claim the right in the said property. It is submitted that husband of the Respondent attempted to join her several times and after continuous refusal by the Respondent he filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act 1955 and the Respondent contested the petition and sought its dismissal which was a testament to her reluctance to live with her husband yet before the learned Metropolitan Magistrate she prayed for the relief of right of residence. It is submitted that the Appellate Court did not appreciate the fact that on one hand the Respondent levied allegations of sexual assault against the Petitioner who is a senior citizen and on the other hand she filed for right to live in the premises where he had been residing. The CRL.M.C. 5188 2013 Petitioners were in the exclusive possession of the premises where their son husband of the Respondent was not even a resident. The husband of the Respondent had been living at Indirapuram Ghaziabad Uttar Pradesh which is the matrimonial home of the Respondent away from his parents and instead of claiming the right to live with her husband at his premises in Indirapuram the Respondent claimed the right with respect to the premises where the husband was not even residing but was a 50 per cent share holder. It is submitted that on several occasions the Petitioners have offered options of alternative accommodation to the Respondent however neither of these offers had ever been accepted by the Respondent. The offers extended to the Respondent were in consonance with the guidelines laid down in Jaidev Rajnikant Shroff vs. Poonam Jaidev Shroff 1 SCC 683 wherein the Hon‟ble Supreme Court noted that while offering a similar alternative accommodation the word “similar” may not be interpreted as identical but has to be construed as providing the same degree of luxury and comfort. 13. Furthermore it is submitted that the Respondent made frivolous and baseless allegations of adultery against the son of the Petitioner and had failed to establish the same before the learned Appellate Court and the finding of the learned Trial Court regarding prima facie existence of an illicit relationship of the son of the Petitioner with one Mona Thakur was also rightly set aside by the Appellate Court. The photographs adduced before the Court below did not in any manner establish the existence of an illicit relationship between the son of the Petitioner and the woman and in fact the Respondent was also present at the trip where CRL.M.C. 5188 2013 the said photos were taken. It is submitted that on the contrary it was the Respondent who was in an extramarital relation with other persons and was caught red handed by her husband. It is submitted by the learned counsel for the Petitioner that while granting a relief under Section 12 of the DV Act there exists a pre condition of receipt of report from protection officer or service provider before passing of any residence orders however in the instant matter no such officer was appointed and powers under Section 12 could not have been invoked while granting the residence order. 15. The Respondent had filed several false cases against the Petitioner and his family members and the right of residence granted to her would enable her to levy more such allegations and accusations upon the Petitioner and disrupt his life entirely. It is therefore prayed the Order of the learned Appellate Court dated 5th December 2013 be set aside for the reason of it being passed in a mechanical manner being bereft of facts. 16. Per Contra Mr. Arvind Varma learned senior counsel appearing on behalf of the Respondent No.1 vehemently opposed the instant petition and submitted that there is no error in the observation of the learned Appellate Court in upholding the Order of the learned Trial Court. It is submitted that the premises in question that is property bearing no. A 41 Swasthya Vihar Delhi 110092 is the matrimonial home of the Respondent and she has been rightfully entitled to residence in the said property by the learned Metropolitan Magistrate. The right to residence of the Respondent arises out of the 50 per cent ownership of her husband in the said premises. CRL.M.C. 5188 2013 18. It is submitted that the husband of the Respondent was having an affair with another woman from his office and when the Respondent came to know about this and objected to the relationship she was thrown out of the said matrimonial house where she had been living for more than 20 years. 19. The Petitioners not only threw out the Respondent from her matrimonial house but there also subsisted a real threat that the Petitioners would restrain her to enter in the house in future as well owing to which the learned Metropolitan Magistrate passed the Order granting the right to live at the matrimonial home at the said premises. 20. Learned counsel appearing on behalf of the Respondent submitted that thereafter on account of cruelty and mental torture the Respondent filed for the case under the DV Act whereby the learned Metropolitan Magistrate was pleased to pass the Order dated 1st November 2013 and the said Order of residence has not yet been challenged by the husband of the Respondent and as such the parents in laws of the Respondent do not have a locus standi to challenge the findings of the learned Metropolitan Magistrate passed against the husband. The Respondent is rightfully entitled to live at the premises in question in light of the fact that it is a co owned property of her husband and the alternative accommodation offered to the Respondent including the property bearing No. 601 Tower 4 Orange County Ahinsa Khand 1 Indirapuram Ghaziabad Uttar Pradesh were not equivalent to the matrimonial home. It is submitted that the offers of alternative accommodation etc. made by the Petitioners have not been bona fide and CRL.M.C. 5188 2013 has been offered after 8 years of the Respondent leaving her matrimonial house. In view of the above facts it is submitted that the instant petition is liable to be dismissed since there is no substantial reason to impugn the judgment of the learned Metropolitan Magistrate. FINDINGS AND ANALYSIS 23. Heard learned counsel for the parties and perused the record. I have perused the impugned Order dated 5th December 2013. 24. The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties. The Respondent approached the learned Metropolitan Magistrate under the DV Act wherein she also filed an interim application seeking the relief of right of residence. The learned Metropolitan Magistrate although did not adjudicate upon the allegations under the DV Act it satisfied itself on the question of the right of the Respondent to live at her matrimonial home. The Respondent alleged that her husband had been living in adultery with another woman and produced several letters photographs and instances where they both travelled and stayed together. It was also stated that after the discovery of the adulterous relationship she was removed from the matrimonial home. For the purposes of granting the interim relief of right to residence the abovementioned statements as well as documents annexed were found sufficient to substantiate the grant the relief in favour of the Respondent. The Appellate Court although did not appreciate the argument of adultery against the husband of the CRL.M.C. 5188 2013 Respondent however the same could not have had an overbearing on the ground appreciated by the learned Metropolitan Magistrate at the preliminary stage while granting the interim relief. 26. The Respondent had been living at the premises in question that is A 41 Swasthya Vihar Delhi 110092 since she got married to the son of the Petitioner. It is also undisputed that the said house is co owned by the husband of the Respondent and the judgment of SR Batra provides the necessary protection to a wife to live at the house entitling her to claim a right to residence in a shared household which would mean a house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member. Hence the observation of the learned Metropolitan Magistrate was in consonance with the findings of the Hon‟ble Supreme Court as well as the fact that the Respondent had an emotional attachment to the house given that she had lived there for over 20 years of her married life and even the Appellate Court was right in upholding the same while passing the impugned Order. 27. Further this Court does not find any force in the argument of the Petitioner that since the Respondent did not wish to live with her husband and refused to join him she could not have claimed a right to residence in her matrimonial home. The right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act 1955 and thereby the learned Appellate Court‟s observation in this regard has also been correctly made. CRL.M.C. 5188 2013 28. The Appellate Court rightly appreciated that the Respondent has a right to live at her husband‟s co owned property that there was a real apprehension that the Petitioners would have removed the Respondent from the house and that the fact of likelihood of filing of cases against the Petitioners could not have affected the Respondent‟s right to live at her matrimonial house and therefore there is no ground to interfere with the Order dated 5th December 2013 passed by learned Additional Sessions Judge 02 Special Judge(hereinafter “ASJ”) East Karkardooma Courts Delhi in Criminal Appeal No. 104 13. 29. Keeping in view the arguments advanced facts and circumstances before the Court findings of the learned Metropolitan Magistrate as well as the observations made by the Appellate Court this Court does not find any error in the Order dated 1st November 2013 whereby the right of residence was granted in favour of the Respondent as well as in the Order dated 5th December 2013 upholding the Order dated 1st November 30. Accordingly the instant petition against Order dated 5th December 2013 passed by learned Additional Sessions Judge 02 Special Judge NDPS) East Karkardooma Courts Delhi in Criminal Appeal No. 104 13 is dismissed. 31. Pending applications also stand disposed of. 32. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) March 8 2021 CRL.M.C. 5188 2013

There is no ban against granting of bail by the Court to persons accused of an offence punishable with death or imprisonment of life: High Court of Delhi

Section 439(1) of Cr.P.C. confers special powers on the High Court or the Court of Session in respect of bail. There is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of SHRI ARUN KUMAR @ ARUN KUMAR MALIK vs. STATE [BAIL APPLN. 2312/2021] on 01.02.2022. The facts of the case are that the complainant received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd entered their house after breaking open the locks, and set it on fire. The complainant’s family members and employees rushed to the top floor of the house and were later safely rescued from the roof of residence. Complainant’s mother, Smt. Akbari, who was 85 years old could not reach the rooftop due to her age and after extinguishing the fire, her body was found lying on a folding bed. It is stated that the petitioner was arrested and has been in custody since then. The petitioner had filed three bail applications before the Court of Sessions and subsequently the same were dismissed by the Learned Judge of the Trial Court. Therefore, the petitioner seeks bail through the present petition. The petitioner’s counsel contended that the accused was falsely implicated in the present matter and that there exists no evidence which can prove the connection of the petitioner to the incident beyond reasonable doubt. Therefore, continued incarceration will violate the petitioner’s right to life and personal liberty under Article 21 of the Constitution of India. The defendant’s counsel contended that the mob of which the petitioner was a part had the knowledge that in all probability the fire would result in the death of residents. He submitted that this attracts the offence of Section 302, IPC and considering the gravity of the offence the accused should not be released on bail. According to the facts and circumstances of the cases, the Court was inclined to grant bail to the Petitioner in exercise of its power u/s 439(1) of Cr.P.C and accordingly, the bail application was disposed of. The Court observed that, “there is no blanket bar as such which is imposed on the Court on granting of bail in such cases and that the Court can exercise discretion in releasing the accused, as long as reasons are recorded which clearly disclose how the discretion has been exercised. Section 439(1), Cr.P.C. of the new Code confers special powers on the High Court or the Court of Session in respect of bail. There is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life”. Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 01st FEBRUARY 2022 IN THE MATTER OF: BAIL APPLN. 2312 2021 SHRI ARUN KUMAR @ ARUN KUMAR MALIK ..... Petitioner Through Mr. Ashwin Vaish Advocate Respondent Through Mr. Amit Prasad SPP for the State with Mr. Ayodhya Prasad Advocate and SI Santosh Gupta Crime Branch Mr. Mehmood Pracha Advocate with Mr.Sanawar Choudhary and Mr. Jatin Bhatt Advocates HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The petitioner seeks bail in FIR No. 70 2020 dated 27.02.2020 registered at PS Bhajanpura for offences under Sections 147 148 149 302 307 396 436 455 201 188 34 of the Indian Penal Code 1860 hereinafter “IPC”). The FIR relates to the violence that took place in the National Capital Territory of Delhi in the month of February 2020. The brief facts leading to the instant Bail Application are that on 25.02.2020 around 11:00 AM. the complainant had gone to purchase milk from a nearby shop when he received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in BAIL APPLN. 2312 2021 support of NRC and CAA. The crowd was chanting slogans of “Jai Shree Ram”. The crowd later entered their house after breaking open the locks and set it on fire. It is stated that the complainant’s family members and employees rushed to the top floor of the house. The complainant’s family members and workers were safely rescued from the roof of his residence which was made possible by the rescue operation launched by the police in support with the locals of the vicinity. It is stated that the complainant’s mother Smt. Akbari who was 85 years old could not reach the rooftop due to her age. After extinguishing the fire her body was found lying on a folding bed and was recovered from the second floor. She was taken to Guru Teg Bahadur Hospital where she was declared brought dead vide MLC No. D 45. A Post Mortem was conducted at GTB Hospital itself and vide PM Report No. 345 2020 dated 28.02.2020 the cause of death was opined as Asphyxia as a result of an ante mortem inhalation of smoke. It is further stated that the crowd looted Rs. 8 00 000 in cash and a box containing gold and silver jewellery and other valuable articles from their residence The investigation of the said case was transferred from North East to Special Investigation Team II Crime Branch Delhi and subsequently to Special Investigation Unit I Crime Branch Delhi vide order No. 8266 74 AC III C&T PHQ dated 27.02.2020 and No. 216 S) DCP Crimedated 04.03.2020.Theinvestigation was undertaken by Insp. Pankaj Arora. The petitioner was arrested on 11.03.2020 and has been in custody since then. The chargesheet was filed on 07.06.2020 and on 06.04.2021 the charges were framed by the Trial Court. BAIL APPLN. 2312 2021 The petitioner had filed Bail Application No. 399 2020 before the Court of Sessions Judge which was dismissed vide order dated 06.08.2020. Thereafter another bail application vide IA No. 04 2021 in SC No. 17 2021 was filed before the Court of Sessions Judge which was subsequently dismissed vide order dated 29.04.2021. 8. Mr. Ashwin Vaish the learned counsel for the petitioner contended that the accused has been falsely implicated in the present matter and that there exists no evidence which can prove the connection of the Petitioner to the incident beyond reasonable doubt. He submitted that the FIR was registered on 27.02.2020 that is two days after the incident occurred and the name of the accused is nowhere mentioned therein. He further submitted that the statements of the eye witnesses under Section 161 CrPC were recorded on multiple occasions. He submitted that particularly the complainant Mohd. Salmani gave his statements on 07.03.2020 08.03.2020 and 10.03.2020. It is only at a later date that is around two weeks after the incident that statement dated 09.03.2020 by Mohd. Aziz Hasan and statement dated 15.03 2020 by Mohd. Saeed Salmani was recorded and the name of the accused surfaced for the first time. He also submitted that the statements given by the daughters of the complainant that is Isha Salmani and Ayesha Salmani who claimed that the accused was a part of the mob that lit the house on fire were recorded on 18.05.2020 that is two months after the incident. He submitted that despite the petitioner herein being the neighbour of the complainant’s family his name surfaced much later and therefore cannot be trusted. The learned counsel for the petitioner contended that the mobile phones that contained the video clippings were not seized in accordance BAIL APPLN. 2312 2021 with Section 102 of the CrPC by the investigating officer. The phones were kept in personal possession of the investigation officer till 16.03.2020 before it was handed over to HC Balraj No. 120 Crime who deposited the same in the Malkhana of PS Bhajanpura. Therefore it cannot be ruled out that the video clippings could have been tampered. 10. The learned counsel for the petitioner contended that the accused was merely a curious onlooker and was not a part of the mob. He submitted that the accused has not been seen coming out of the said house in any of the video clippings. He submitted that in the video clip of 1.04 minutes that was shot by Mohd. Irshad at the 0.30 second frame it is the accused Varun Kumar who is seen coming out of the complainant’s house while the house was on fire and not the accused herein. The same has been categorically mentioned in the chargesheet. He further submitted that nothing has been recovered from the possession of the accused and offences of dacoity and rioting are not made out against the petitioner herein. The learned counsel also submitted that as per the photographs placed on record as well as the statement of PW Satish Kumar the accused was seen rescuing the victims of the incident. He therefore argued that subsequent conduct of the petitioner is clearly contradictory to the allegations that have been levelled against him. He submitted that the entire approach of the investigative agency towards the matter has been a prosecutorial approach. 11. The learned counsel for the petitioner submitted that the accused has been in custody since 11.03.2020. The investigation qua accused has been complete the chargesheet has been filed and there haven’t been any new developments or further arrests since then. He submitted that there are over BAIL APPLN. 2312 2021 53 prosecution witnesses and more than 75 documents to be examined and the trial is not likely to be concluded any time soon. He further submitted that the supplementary chargesheet has not been supplied and the FSL report has not been placed on record yet even though two years have passed. Therefore continued incarceration will violate the petitioner’s right to life and personal liberty under Article 21 of the Constitution of India. 12. The learned counsel for the petitioner submitted that the offence under Section 146 148 149 of the IPC are bailable. He submitted that the petitioner has no permanent employment. He submitted that the accused immediately joined investigation 08.03.2020 and has made no attempts to abscond since then. The accused has deep roots in the society and there are no apprehensions against him for attempting to delay the trial tamper with evidence. He further submitted that the petitioner has undertaken to abide by the conditions that this Hon’ble Court deems fit. 13. Per Contra Mr. Prasad learned SPP submitted that during investigation the statements of the complainant his family members and other independent witnesses namely Mohd. Ayaz Hasan Shakeel and Salam were recorded under Section 161 of the CrPC and all have categorically mentioned the name of the petitioner as an active member of the riotous mob that had set the house of the complainant on fire. 14. The learned SPP submitted that the independent witness Shakeel vide statement dated 23.04.2020 specifically stated that on the date of the incident he saw the accused along with the co accused Varun holding a match box in their hand and entering the scene of crime. The witness further stated that he saw them bringing the match box from their house which is located on the same street as that of the victim. BAIL APPLN. 2312 2021 15. The learned SPP submitted that several video clippings of the incident were found that have been taken on record and the mobile phones in which they were recorded have been seized and referred to forensic laboratory for retrieving the video clips and expert’s analysis. He submitted that out of these in a video clip of 124 seconds shot by Mehraj Ansari the presence of the petitioner herein is seen on the basis of which he was identified by the complainant his son Mohd. Asif Salmani daughters Isha Salmani and Ayesha Salmani and Salam. 16. The learned SPP submitted that the complainant is a well to do businessman and has been specifically targeted by the mob. He submitted that he along with his family have been receiving threats from and at the instance of the family members and the associates of the accused persons who live in their street itself. Due to this the complainant and his family are in an extremely precarious situation. Therefore in such circumstances especially when all the statements of public witnesses have not yet been recorded and when the investigation has not been conducted in a proper manner grant of bail would be prejudicial to the trial. 17. Mr. Pracha the learned counsel for the complainant contended that the above incident was a pre mediated crime. He submitted that the house of the complainant was situated inside the gali and not at the outskirts. Further through video clippings he highlighted the fact that the area is so compact that that there is virtually no room for any escape. He further submitted that the ground floor was on set fire and therefore the residents were unable to come out of the house. This forced the residents to rush to the top floor in order to save themselves. The mob of which the petitioner was a part had the knowledge that in all probability the fire would result in the death of BAIL APPLN. 2312 2021 bail. residents. He submitted that this attracts the offence of Section 302 IPC and considering the gravity of the offence the accused should not be released on 18. Mr. Pracha the learned counsel for the complainant further contended that ocular evidence is considered to be the best evidence unless there are grave reasons to question its credibility. Where there is substantial evidence present the absence of an FSL report is considered as irrelevant. For this purpose he placed reliance on the judgement of Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala 2021 SCC OnLine SC 493. 19. Mr. Pracha learned counsel for the complainant submitted that the investigation has been conducted in a shoddy manner which is against the principles of fair trial under Article 21 of the Constitution of India. He further submitted that neutrality of the police and the investigating agency is an important factor to conduct the investigation in a proper manner. For this purpose he placed reliance on Pooja Pal v. Union of India and Others 2016) 2 SCC 135. record. 20. The court has heard both the parties and perused the material on 21. The petitioner is a resident of Bhajanpura and works as a photographer. The chargesheet states that an analysis of the Petitioner s mobile number has revealed that he was present at the Scene of Crime during the time of the alleged incident. The chargesheet further mentions that the petitioner has been identified by the complainant his son Mohd. Asif Salmani his daughters Isha Salmani and Ayesha Salmani and other independent witnesses. BAIL APPLN. 2312 2021 22. A perusal of the charge sheet and the video footages indicate that the accused was seen in only one video clip which was of 124 seconds that was shot by Mehraj Ansari. He was seen carrying a lathi in his hand however that in itself is not sufficient to make him an active member of the mob that set the house on fire. Further nothing was recovered from the petitioner herein to indicate that he was an active member of the said unlawful assembly and had the common intention to commit any act in furtherance of the common object. In the instant case the issue which arises for consideration is whether when an offence of murder is committed by an unlawful assembly then should each person in the unlawful assembly be denied the benefit of bail regardless of their role in the unlawful assembly or the object of the unlawful assembly. In order to understand the same it is useful to refer to Section 149 IPC which reads as follows: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence.” 24. The Supreme Court has consistently held that in order to convict an accused with the aid of Section 149 a clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore if any such finding is absent or if there is no overt act on behalf of the accused the BAIL APPLN. 2312 2021 common object. mere fact that the accused was armed would not be sufficient to prove In Kuldip Yadav and Ors. v. State of Bihar 5 SCC 324 the Supreme Court has categorically stated: “39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under Section 149.” In Sherey and Ors. v. State of U.P. SuppSCC 437 the Supreme Court considered as to whether Section 149 of the IPC could be applied to hold an accused constructively liable on the basis of omnibus allegations made by witnesses and on the basis of their mere presence at the spot scene of crime. “4. We have carefully gone through the evidence. We have no doubt that all the eye witnesses were present. Nothing significant has been elicited crossexamination. However the eye witnesses simply named these appellants and identified them. So the question is whether it is safe to convict all the appellants. In a case of this nature the evidence of the witnesses has to be subjected to a close scrutiny in the light of their former statements. The earliest report namely the FIR has to be examined carefully. No doubt in their present deposition they have described the BAIL APPLN. 2312 2021 arms carried by the respective accused but we have to see the version given in the earliest report. In that report PW 1 after mentioning about the earlier proceedings has given a fairly detailed account of the present occurrence. He has mentioned the names of the witnesses and also the names of the three deceased persons. Then he proceeded to give a long list of names of the accused and it is generally stated that all of them were exhorting and surrounded the PWs and the other Hindus and attacked them. But to some extent specific overt acts are attributed to appellants 1 4 5 7 8 10 17 22 and 25. It is mentioned therein that these nine accused were armed with deadly weapons and were seen assaulting the deceased Ram Narain and others. Now in the present deposition he improved his version and stated that in addition to these nine accused five more persons also attacked the deceased and others. In view of this variation we think that it is safe to convict only such of the appellants who are consistently mentioned as having participated in the attack from the stage of earliest report. With regards the rest PW 1 mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. Further the medical evidence rules out any lathis having been used. The doctor found only incised injuries on the dead bodies and on the injured PWs. Therefore it is difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they are charged. We feel it highly unsafe to apply Section 149 IPC and make everyone of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely that they were armed with lethal weapons like swords and axes and attacked the deceased and others. This strong circumstance against them establishes their presence as well as their membership of the unlawful assembly. The BAIL APPLN. 2312 2021 learned counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that they were members of an unlawful assembly with the common object of committing various offences including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance…” 27. When there is a crowd involved at the juncture of grant or denial of bail the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object. It cannot be assumed that every member of the unlawful assembly could be found guilty of the offence of Section 302 of the IPC and therefore every decision on an application of bail must be based on a careful consideration of the facts and circumstances in the matter therein. In relation to the bar imposed by Section 437(1) CrPC on granting of bail the Supreme Court in Gurcharan Singh v. State Administration) 1 SCC 118 holds that it is the Court which has the last say on whether there exists any reasonable grounds for believing that the accused is guilty of committing the said offence. Furthermore there is no blanket bar as such which is imposed on the Court on granting of bail in such cases and that the Court can exercise discretion in releasing the accused as long as reasons are recorded which clearly disclose how the discretion has been exercised. The relevant extract is as follows : BAIL APPLN. 2312 2021 “24. Section 439(1) Cr.P.C. of the new Code on the other hand confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1) Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life. It is however legitimate to suppose that the Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) Cr.P.C. of the new Code. The overriding considerations in granting of bail to which we adverted to earlier and which are common both in the case of Section 43791) and Section 439(1) Cr.P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed the position and the status of the accused with reference to the victim and the witnesses the likelihood of the accused fleeing from justice of repeating the offence of jeopardising his own life being faced with a grim prospect of possible conviction in the case of tampering with witnesses the history of the case as well as its investigation and other relevant grounds which in view of so many valuable factors cannot be exhaustively set out.” It must also be kept in mind that gravity of the offence cannot be the sole basis for grant of bail. In the case of the Prabhakar Tiwari v. State of U.P. SCCOnline SC 75 the Supreme Court has held that despite the alleged offence being grave and serious and there being several BAIL APPLN. 2312 2021 criminal cases pending against the accused these factors by themselves cannot be the basis for the refusal of prayer for bail. The Petitioner was arrested on 11.03.2020 and has been in judicial custody since then. It has been almost 21 months since the arrest of the Petitioner. Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring that social security remains intact. It is the intricate balance between the securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore the Court while deciding an application for grant of bail must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail In Prasanta Kumar Sarkar v. Ashis Chatterjee 14 SCC 496 the Supreme Court laid down the parameters for granting or refusing the grant of bail which are as under: the punishment “i. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii. nature and gravity of the accusation iii. severity of conviction iv. Danger of the accused absconding or fleeting if released on bail v. character behavior means position and standing of the accused vi. Likelihood of the offence being repeated vii. the witnesses being Reasonable apprehension of the event of BAIL APPLN. 2312 2021 influenced and viii. Danger of course of justice being thwarted by grant of bail.” In Mahipal v. Rajesh Kumar 2 SCC 118 the Supreme Court had observed as under: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors among which the nature of the offence the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for grant of bail the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter of trial. However the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court an appellate court must be slow and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 42. It is the Constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power. Bail is the rule and jail is the exception and Courts must exercise their jurisdiction to uphold the tenets of personal liberty subject to rightful regulation of the same by validly enacted legislation. The Supreme Court has time and again held that Courts need to be alive to both ends of the spectrum i.e. the duty of the Courts to ensure proper enforcement of criminal law and the duty of the Courts to ensure that the law does not become a tool for targeted harassment." BAIL APPLN. 2312 2021 It is the Constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power. Bail is the rule and jail is the exception and Courts must exercise their jurisdiction to uphold the tenets of personal liberty subject to rightful regulation of the same by validly enacted legislation. The Supreme Court has time and again held that Courts need to be alive to both ends of the spectrum i.e. the duty of the Courts to ensure proper enforcement of criminal law and the duty of the Courts to ensure that the law does not become a tool for targeted harassment. 34. As has been stated above the petitioner herein has been in custody for almost 21 months. The chargesheet has been filed and the investigation qua the petitioner herein has been completed and no incriminating evidence has been recovered from the petitioner. Further the Trial court has taken cognizance of the matter and the charges have also been framed. Whether the identification of the petitioner as per the witness statements under Section 161 CrPC and the presence of the petitioner in the video footage with a lathi in his hand is enough to determine the petitioner as an active member of the unlawful assembly with the common intention to commit the offence of Section 302 in furtherance of the common object is a matter of trial and cannot be delved into at this juncture. 35. Even though the petitioner was spotted with a lathi he has not been seen attacking any person with the lathi. The atmosphere where incident took place was charged and considering that the petitioner herein is the neighbour of the complainant it cannot be said with certainty that the presence of the accused at that time with the lathi alone is sufficient to BAIL APPLN. 2312 2021 conclude that he was an active member of the unlawful assembly that set the house of the complainant on fire. Therefore the above material against the petitioner does not justify the continued incarceration of the Petitioner. 36. There are around 53 prosecution witnesses and more than 75 documents in the present matter and the trial will continue for a long period of time. This Court is of the opinion that it would not be prudent to keep the Petitioner behind bars for an undefined period of time at this stage. The Petitioner has roots in society and therefore there is no danger of him absconding and fleeing In view of the facts and circumstances of the cases without commenting on the merits of the matter this Court is of the opinion that the Petitioner cannot be made to languish behind bars for a longer period of time and that the veracity of the allegations levelled against him can be tested during trial. 38. Accordingly this Court is inclined to grant bail to the Petitioner in FIR No. 70 2020 dated 27.02.2020 registered at PS Bhajanpur for offences under Sections Bhajanpura for offences under Sections 147 148 149 302 307 396 436 455 201 188 34 of the IPC on the following conditions : The Petitioner shall furnish a personal bond in the sum of ₹35 000 with one surety of the like amount to the satisfaction of the Trial Court Duty Magistrate. The Petitioner shall not leave NCT of Delhi without prior permission of this Court. The Petitioner shall report to the concerned Police Station every Tuesday and Thursday at 10:30 AM and should be released after completing the formalities within half an hour. BAIL APPLN. 2312 2021 The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. The Petitioner has given his address in the memo of parties as House No. A 195 Gali No. 3 Village Gamri Bhajanpura Delhi 110053. The Petitioner is directed to continue to reside at the same address. In case there is any change in the address the Petitioner is directed to intimate the same to the IO. The Petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during 40. Accordingly the bail application is disposed of along with the the trial. pending application(s) if any. FEBRUARY 01 2022 SUBRAMONIUM PRASAD J. BAIL APPLN. 2312 2021

Impairment of credibility for the prosecution side due to non-examination of any independent witness: The High Court of Calcutta

The Delhi High court, in its recent judgment, gave a verdict that 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 legislation. Further on the investigation, the facts were proven and the statements were recorded from both 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 evidence. 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 the 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.” Further, the court also held that “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.”

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

Denial of cross-examination of witnesses by a party during Record of Evidence does not invoke violation of his natural justice: High Court of Delhi

When an opportunity to cross-examine the witnesses who are produced during the Record of Evidence is provided to a party, however, if he denies to cross-examine those witnesses, then in that case he cannot be heard to complain about violation of principles of natural justice. These were stated by the High Court of Delhi, containing Justice Navin Chawla in the case of Pulate Rajesh Sopan vs. Union of India & Ors. [W.P.(C) 295/2022] on 07.01.2022. The facts of the case are that the petitioner joined the Indo Tibetan Border Police Force (in short, ‘ITBP’) as a Constable/GD in the year 2011 and has had a spotless service record. In the year 2019, he was transferred to the 39th Battalion, Lakhnawali Camp, Greater Noida. During the month of December 2020, he was posted at the Rashtrapati Bhawan. During this period, he had made repeated complaints about the quality of food being served to the personnel, however, no fruitful result came out of such complaints. The petitioner claims that on 25.12.2020, during the shift briefing by the Shift Commander at the Rashtrapati Bhawan, the petitioner again raised the issue of unhealthy food served to them. The other personnel also made a similar complaint. The Shift Commander, instead of answering the grievances, with the mala fide and vexatious motive, alleged that the petitioner is acting under influence of alcohol and on this pretext, the petitioner was taken for a medical checkup. No doctor was present at the medical centre and therefore, no test was conducted on the petitioner. On 26.12.2020 the petitioner was made to appear before the Commandant, 39th Battalion ITBP; who passed an order to initiate disciplinary inquiry in summary disposal against the petitioner and also placed the petitioner under suspension with immediate effect. On 15.03.2021, the petitioner was sent to illegal confinement for a period of 21 days. The petitioner alleges that during this force custody, one official visited the petitioner and forced him to sign certain documents without making him aware of the contents of said documents. The petitioner was thereafter informed about the impugned order dated 15.03.2021 finding him guilty on the charges of having consumed liquor while on duty and disobedience to a superior officer. The Counsel for the petitioner submitted that the Record of Evidence (RoE) prepared in the inquiry was totally illegal inasmuch as no witnesses were examined in the presence of the petitioner nor any opportunity to rebut and cross-examine the witnesses was given to the petitioner. She submitted that the petitioner was forced to sign the deposition and other documents and therefore, the entire proceedings are in violation of principles of natural justice. She further submitted that even the complete copy of the RoE has not been supplied to the petitioner till date. The learned counsel for the petitioner further stated that the medical report on the basis of which the disciplinary proceedings were initiated, does not bear the name, signature or the stamp of any doctor, and therefore is forged. The Counsel for the respondents submitted that the entire RoE has been supplied to the petitioner. She said that according to the RoE filed by the petitioner with the petition, which states that the petitioner had been afforded an opportunity to cross-examine all the four witnesses, however, the petitioner refused to cross-examine the witnesses. She further stated that the petitioner was also afforded an opportunity to lead evidence in his defence, which again the petitioner denied. She submitted that the petitioner has been dealt with leniently for otherwise the misdemeanour alleged against him, that is, intoxication on duty and disobedience to a superior officer.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 16th December 2021 Pronounced on: 10th January 2022 CM(M) 37 2019 SUMER SINGH SALKAN Through: Ms. Malavika Rajkotia with Mr. Petitioner Mayank Grover Advocates. VIKRAM SINGH MANN & ORS Through: Dr. Reema Salkan R 2 in person and Respondents Power of Attorney Holder for R 1. HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. The present petition under Article 227 of the Constitution of India seeks setting aside of the order dated 6th February 2018 whereby an application filed on behalf of the respondent no. 1 defendant no. 7 under Order I Rule 10 of the Code of Civil Procedure 1908 seeking deletion from the array of parties has been allowed andthe order dated 12th July 2018 whereby the review filed on behalf of the petitioner plaintiff hereinafter ‘plaintiff’] against the order dated 6th February 2018 has been Notice was issued in the present petition on 11th January 2019 and pursuant thereto counter affidavit has been filed on behalf of the respondents no. 1 and 2. Arguments of the counsels for the parties were heard on 16th December 2021 and thereafter the judgment was reserved. CM(M) 37 2019 Pursuant to the liberty granted by the Court to both sides written submissions have been filed on behalf of the petitioner. Brief facts necessary for deciding the present petition are set out 3.1 The plaintiff and the defendant no. 1 got married on 24th March 2002 but soon thereafter the petitioner left for Canada. Differences arose between them which resulted in filing of police complaints by the defendant no. 1 against the plaintiff. 3.2 On 3rd March 2004 a ‘Red Corner Notice’was issued against the plaintiff who at that point of time was in Canada in which it was incorrectly recorded that the maximum possible penalty for the offences allegedly committed by the plaintiff was 10 years whereas the maximum punishment prescribed for the said offences under Sections 498A 406 and 34 of the Indian Penal Code 1908was three years. 3.3 The plaintiff filed a writ petition before this Court seeking quashing of the illegal RCN and the LOC issued against the plaintiff being W.P.Crl. 1315 2008 and vide the order dated 11th August 2010 this Court allowed the petition and quashed the RCN. 3.4 The suit from which the present petition arises being CS 58517 16 was filed on 10th August 2011 seeking damages of Rs.50 00 000 against inter alia the respondent no. 1 being defendant no. 7 and the respondent no. 2 being defendant no. 1 in the suit. 3.5 The suit was premised on damage to the plaintiff’s career reputation and life caused by the misuse and abuse of the legal process in getting a ‘Look Out Circular’ and RCN issued by the defendants against the CM(M) 37 2019 3.6 The case set up in the plaint was that the defendant no. 1 who was married to the plaintiff used her brother defendant no. 7 who was a senior IPS officer to have a false FIR lodged and illegal LOC and RCN issued against the plaintiff which caused immense harm to his career and 3.7 The said suit was contested by the defendants by filing a written statement. In the said suit the defendants no. 5 and 6 filed two applications under Order I Rule 10 of the CPC seeking deletion of their names from the array of parties and the Single Judge vide judgment dated 20th February 2015 dismissed the application filed by the defendant no. 5 but allowed the application filed by the defendant no. 6. However vide judgment dated 1st February 2016 a Division Bench of this Court deleted defendants no. 5 and 6 from the array of parties. The plaintiff filed a Special Leave Petition against the said judgment which is pending before the Supreme Court. 3.8 On 29th February 2016 the suit was transferred to the District Court. 3.9 Thereafter the defendants no. 1 and 7 filed a joint application under Order I Rule 10 and Order VII Rule 11(d) of the CPC seeking their deletion from the array of parties and rejection of the plaint. The impugned order dated 6th February 2018 allowed the application partially by rejecting the plaint qua the defendant no. 7 and deleting the defendant no. 7 from the array of parties. However the plaint was not rejected qua the defendant no. 1. The impugned order held that: in the whole plaint there are vague allegations of collusion against the defendant no. 7 no particulars have been given by the plaintiff as to how the defendant no. 7 was involved in issuing of LOC or RCN CM(M) 37 2019 the defendant no. 7 being the brother of the defendant no. 1 and an IPS officer cannot be a ground to implead him in the suit on the basis of vague allegations of collusion based on the aforesaid it was held by the Trial Court that there is no cause of action against the defendant no. 7 and hence the plaint qua him was rejected the application under Order I Rule 10 of the CPC has been filed on the same grounds as the application filed under Order VII Rule 11(a) of the CPC and accordingly the defendant no. 7 was deleted from the array of parties. 3.10 The plaintiff preferred a review application against the aforesaid judgment of the Trial Court which was dismissed by the impugned order dated 12th July 2018 by observing that the judgment dated 11th august 2020 passed by this Court in W.P. Crl 1315 2008 does not help the case of the plaintiff and there are no specific allegations against the defendant no. 7 in the plaint. The counsel for the petitioner contended thataverments have been made against the defendant no. 7 with regard to his involvement and collusion with the defendant no. 1 so as to initiate various unlawful proceedings against the plaintiff resulting in issuance of the RCN and the LOC. In this regard attention of the Court is drawn to paragraphs 5 6xxii) (xxvii) (xxxii) (xxxix) and 9 of the plaint ii) a Co ordinate Bench of this Court in the judgment dated 11th August 2010 in W.P.Crl. No.1315 2008 quashed the RCN issued against the plaintiff and observed in paragraph 10 of the said judgment that the LOC CM(M) 37 2019 against the plaintiff was issued in view of the fact that defendant no. 7 was the brother of defendant no. 1 and also an IPS officer and accordingly keeping in mind the principles to be applied while deciding an application under Order I Rule 10 of the CPC defendant no. 7 is a necessary and proper party to the suit and therefore cannot be deleted from the array of parties. Defendant no.1 appeared in person on her own behalf as well as on behalf of the defendant no. 7 as his Power of Attorney Holder. She submits thatthere is no infirmity in the impugned order as only vague averments have been made in respect of the defendant no. 7 there is no finding in the judgment dated 11th August 2010 against the defendant no. 7 and the observations in paragraph 10 relied upon by the plaintiff are only allegations made by the plaintiff and not findings of the Court. Even otherwise any observations made in the aforesaid judgment are not binding on the defendant no. 7 since the defendant no. 7 was not a party in aforesaid writ petition and the defendant no.7 was not posted in Delhi at the relevant point of time and therefore could not have played any role in the issuance of RCN and LOC against the plaintiff. I have perused the record and heard the counsels for the parties. In order to decide the controversy at hand it may be useful to refer to the principles to be applied while invoking principles of Order I Rule 10 of the CPC. Order I Rule 10(2) of the CPC empowers the Court to delete or add parties to the suit. In Vidur Impex and Traders Pvt. Ltd. & Ors. Vs. Tosh Apartments Pvt. Ltd. & Ors. 8 SCC 384 the Supreme Court has succinctly laid down the principles to be followed while deciding an application filed under Order I Rule 10(2) of the CPC. Paragraph 36 in this regard is set out below: CM(M) 37 2019 “36. Though there is apparent conflict in the observations made in some of the aforementioned judgments the broad principles which should govern disposal of an application for impleadment 1. The Court can at any stage of the proceedings either on an application made by the parties or otherwise direct impleadment of any person as party who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would enable the Court to completely effectively and properly adjudicate upon all matters and issues though he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.” The Supreme Court in Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. & Ors. 7 SCC 417 has observed that the general rule in regard to impleadment of parties is that the plaintiff in a suit being dominus litis may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Applying the aforesaid principles to the present case in my view a bare reading of the plaint discloses that the plaintiff has made averments in the plaint against the defendant no. 7 which are sufficient in nature for the CM(M) 37 2019 defendant no. 7 to be a necessary and a proper party for the adjudication of the suit. Some of the averments made in the plaint with regard to defendant no. 7 are set out below: “(xxii) The defendant No.1 using the contact network in the police and influence of her brother Mr. Vikram Singh Mann managed to get an illegal Look Out Circular LOC) issued against the plaintiff on the 27.05.2003 by an who was not even authorised to issue LOC. xxvi) The defendant No.1 continued to harass the plaintiff and his family in the garb of proceedings under Section 498 A 406 34 of IPC. The defendant No.l with ulterior motives has spurned every effort by the plaintiff his family and their representatives to resolve the matters in an amicable manner. Using her brother s the defendant No.6 influence with the police she managed to get an LOC issued against the plaintiff on 30.05.2003. After lodging the F.I.R No.127 of 2003 dated 22.04.2003 a Red Corner Notice was also issued by lnterpol on 03.03.2004 and displayed on internet containing wrong and misleading information about Nationality of plaintiff and alleged crimes for which he was allegedly wanted when the same was factually incorrect. xxxii) Since no response was received for a longtime another notice dated 19.08.2008 was issued to defendant No.3 with a copy to the ACP Sub Division Narela. A letter dated 28.08.2008 was thereafter received from defendant No.2 according to which the Red Corner Notice was issued at the behest of Delhi Police. The said notice was then amended but only the alleged offence of kidnapping had been dropped. The Interpol in their reply further stated that the Red Corner Notice cannot be withdrawn unless Delhi Police asks for the same. Clearly such malicious acts were at the behest of defendant No.6 & 1. It was not understood why the false criminal charge of Crimes against life and health was not removed from the Red Corner CM(M) 37 2019 Notice . This ought to have been done with immediate effect. Moreover to the best of the knowledge of plaintiff there was no arrest warrant issued against him by any of the Hon ble Courts in India.” 10. Not only the averments above even in the prayer damages have been jointly sought by the plaintiff against all the defendants including the defendant no. 7. 11. The Trial Court has allowed the application under Order I Rule 10(2) of the CPC filed by the defendant no. 7 on the ground that only vague averments have been made against the defendant no. 7 and no specific incidents showing the role of the defendant no.7 have been given. In my view the averments made in the plaint are sufficient for the impleadment of defendant no. 7 in the suit. Whether or not the said averments are true would be a matter of trial and the plaintiff would have to prove the said averments in the trial. But at this stage the plaintiff cannot be denied an opportunity of proving the averments made by him against the defendant no. 7 in the suit. Counsel for the plaintiff has correctly placed reliance on the judgment of the Supreme Court in Syed Dastagir Vs. T.R.Gopalakrishnasetty 1999SCC 337 to contend that the pleading has to be read as a whole to gather what has sought to be conveyed. 13. Even though while deciding an application under Order I Rule 10(2) of the CPC reference has to be made to the averments made in the plaint there is merit in the submission of the counsel for the plaintiff that in the judgment dated 11th August 2010 there are observations made by this Court in respect of the role played by the defendant no. 7 in getting the RCN LOC issued against the plaintiff which RCN was ultimately quashed by this Court vide the judgment dated 11th August 2010. In this regard reference CM(M) 37 2019 may be made to the following observations made in paragraph 10 of the aforesaid judgment: “10. In the present case the LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact the complainant’s close relative was an IPS officer. The allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment.” 14. There was no basis for the Trial Court to allow the application filed on behalf of the defendant no.1 under Order VII Rule 11 of the CPC on a piecemeal basis. While adjudicating an application under Order VII Rule 11 the plaint has a whole has to be rejected if the conditions mentioned under Order VII Rule 11 are fulfilled. However the plaint cannot be rejected in a piecemeal manner. Therefore the impugned order to the extent it allows the Order VII Rule 11 application filed on behalf of the defendant no.1 qua the defendant no. 7 is clearly erroneous. In this regard reference may be made to the judgment of the Supreme Court in Sejal Glass Ltd. Vs. Navilan Merchants Pvt. Ltd. 11 SCC 780. Paragraph 8 of the said judgment is set out below: “8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law that once a part of a plaint cannot proceed the other part also cannot proceed and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases if the plaint survives against certain defendants and or properties Order 7 Rule 11 will have no application at all and the suit as a whole must then proceed to trial.” CM(M) 37 2019 15. The reliance placed by the defendants on the judgment dated 01st February 2016 of the Division Bench in respect of the defendants no. 5 and 6 is misplaced as the said judgment proceeded on the basis that the said defendants no. 5 and 6 who were officials of the Delhi Police acted in the course of their official duty and therefore the defendants no. 5 and 6 were not the necessary or proper parties in the suit. However the reasoning of the said judgment cannot be applied in the present case. It is an admitted position that the defendant no. 7 was not posted in Delhi nor was he directly involved with the issuance of LOC and or RCN in the course of his official duty. The involvement of the defendant no. 7 is only based on the fact that he is the brother of defendant no.1 and was trying to help the defendant no. 1 in her matrimonial disputes against the plaintiff. It was only after the judgment dated 01st February 2016 of the Division Bench when the defendants no. 5 and 6 were deleted from the array of parties that the present application under Order I Rule 10 and Order VII Rule 11 of the CPC was filed by the defendants no. 1 and 7. Clearly it was highly belated five years after the institution of the suit and appears to be in the nature of an afterthought. In view of the above the present petition is allowed and the impugned order to the extent it rejects the plaint qua defendant no. 7 and allows deletion of the defendant no. 7 from the array of parties under Order I Rule 10(2) of the CPC is manifestly erroneous and is accordingly set aside. JANUARY 10 2022 AMIT BANSAL J CM(M) 37 2019

The principle of construction of statutory Rules would apply to the interpretation of Punjab Police Rules, 1934: Supreme Court of India

“The High Court did not commit any error in construing the Rules in the manner as was construed by the High Court. We endorse the view of the High Court interpreting the Punjab Police Rules, 1934.” This auspicious judgment was passed by the Supreme Court of India in the matter of Suresh Kumar v. State of Haryana & Ors. [CIVIL APPEAL NO.1076 of 2021] by Justice Ashok Bhushan. The factual data of this case states that- three appeals were filed against the judgment of Punjab & Haryana high court dismissing the writ petition which upheld the promotion orders of all the respondent Nos.4 to 34 as Inspector in the Haryana Police. The appointment and promotion in the Police Force of the State of Haryana were governed by Punjab Police Rules, 1934. In the State of Haryana prior to 2001, 100% of posts of Sub-Inspectors of Police used to be filled by way of promotion. The writ petition was contested both by the State as well as by the private respondents. It was pleaded on behalf of the State that the eligibility for promotion from the post of Sub-Inspector to Inspector is eight years’ service of which five years’ service should be as Sub-Inspector, none of the writs petitioners had to their credit eight years’ service hence they being not eligible were promoted. This Court has laid down time and again that “while construing statutory Rules such construction should be adopted which may give effect to the intention or object of the Rule and no such interpretation be put which may make the Rule ineffective. We may refer to the judgment of this Court in the State of Gujarat and Another vs. Justice R.A. Mehta (Retired) and Others, (2013) 3 SCC 1, where this Court laid down following in paragraphs 96, 97 and 98.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10721 arising out of SLP(C)No.94920 ...APPELLANT(S THE STATE OF HARYANA & ORS ...RESPONDENT(S CIVIL APPEAL NO.10721 arising out of SLP(C)No.94820 OM PARKASH AND ANOTHER ...APPELLANT(S THE STATE OF HARYANA & ORS ...RESPONDENT(S CIVIL APPEAL NO.10721 arising out of SLP(C)No.101620 SANDEEP KUMAR & ANOTHER ...APPELLANT(S THE STATE OF HARYANA & ORS ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J These three appeals have been filed against the common judgment dated 27.07.2020 of the High Court of Punjab and Haryana dismissing the Civil Writ Petition No.134909 which was filed by the appellants in first two appeals. The third appeal Sandeep Kumar and another is an appeal filed by the two appellants who were intervenors in the Civil Writ Petition No.134909. The Division Bench of the High Court by the impugned judgment dismissed the writ petition upholding the promotion orders of all the respondent Nos.4 to 34 as Inspector in the Haryana Police Brief facts of the case necessary to be noted for deciding these appeals are The appointment and promotion in Police Force of the State of Haryana are governed by Punjab Police Rules 1934. In the State of Haryana prior to 2001 100% posts of Sub Inspectors of Police used to be filled by way of promotion. Rule 12.3 was amended vide notification dated 24.12.2001 by substituting Rule 12.3 to the following effect “12.3 Direct appointment of Inspectors and Sub Inspectors Except as provided in rules 12.1 and 12.4 direct appointment shall not be made except in the rank of Inspector and Sub Inspector of Police. Such appointment in the rank of Inspector and Sub Inspector may be made to a maximum of ten percent and fifty percent of posts respectively.” The first direct recruitment on the post of Sub Inspector was held in the year 2003 in which recruitment all the three writ petitioners Om Prakash Sudeep Kumar Singh and Suresh Kumar were recommended for direct recruitment as Sub Inspector. All the writ petitioners joined in May 2003 as Sub Inspector. The private respondents to these appeals who were arrayed as respondent Nos.4 to 34 in the writ petition were promoted to the rank of Sub Inspector from Assistant Sub Inspector between June 2003 and March 2004 i.e. after the writ petitioners had joined. The respondents were promoted on the post of Inspector by orders dated 27.11.2008 18.05.2009 and 13.08.2009. The writ petitioners aggrieved by the above mentioned promotion orders filed Civil Writ Petition No.13496 of 2009 praying for following reliefs “i) Issue a writ in the nature of mandamus summoning the records of the cases ii) Issue a writ in the nature of certiorari quashing the order dated 27.11.2008 Annexure P 8) order dated 18.05.2009 Annexure P 9) and order dated 13.08.2009 Annexure P 10) whereby the private respondents have been promoted as Inspectors of Police iii) Issue a writ in the nature of certiorari quashing the confirmation order dated 30.06.2009 order dated 15.06.2009 and also order dated 30.06.2009iv) Issue a writ in the nature of certiorari quashing the Rules 12.2 12.8 and 13.18 of the Punjab Police Rules being ultra vires of Articles 14 and 16 of the Constitution Issue a writ in the nature of mandamus directing the official respondents to consider and promote the petitioner as Inspector with effect from the date the private respondents were promoted and directing the official respondents to grant all consequential reliefs that flow viz. seniority in the rank of Inspector fixation of pay payment of arrears of pay along with interest at the rate of 12 per cent per annum etc. etc vi) Issue any other suitable writ order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case may be The writ petition was contested both by the State as well as by the private respondents. It was pleaded on behalf of the State that the eligibility for promotion from the post of Sub Inspector to Inspector is eight years’ service of which five years’ service should be as Sub Inspector none of the writ petitioners had to their credit eight years’ service hence they being not eligible were not promoted. The writ petitioners were promoted in the year 2011 when they completed eight years of service to their credit The State defended the vires of the Rules and contends that the Rules were neither arbitrary nor violative of Articles 14 and 16 of the Constitution. The High Court framed following two issues in the writ petition for “(i) Whether Rule 13.14(2) prescribes the eligibility criteria for consideration for promotion to the post of Inspector ii) If the Rule 13.14(2) is applicable whether the conditions of eight years experience is arbitrary and discriminatory and is therefore required to be struck down being violative of Article 16 of the Constitution ” The High Court after considering the submissions of the parties held that Rule 13.14(2) of the Punjab Police Rules 1934 prescribes the eligibility criteria for consideration for promotion to the post of Inspector. The High Court also held that requirement of eight years’ experience for promotion to the post of Inspector is neither arbitrary nor discriminatory After recording the conclusion writ petition was dismissed by the High Court. Aggrieved by the judgment of the High Court the writ petitioners have filed first two appeals and the last appeal has been filed by the intervenors. We have heard Shri P.S. Patwalia learned senior counsel and Shri Shyam Divan learned senior counsel appearing for the appellants. Shri Gurminder Singh learned senior counsel has appeared for the private respondents. Shri Nikhil Goel learned Additional Advocate General has appeared for the State of Haryana Learned senior counsel for the appellants submits that the appellants writ petitioners were senior to the private respondents in the cadre of Sub Inspector and they being directly recruited before the respondents could be promoted as Sub Inspector. They being seniors were entitled to be promoted on the post of Inspector as they have also completed five years’ experience as Sub Inspector. It is submitted that the High Court has wrongly relied on Rule 13.14 which Rule was not applicable for promotion to the post of Inspector from Sub Inspector. It is submitted that the applicable Rules for promotion from the rank of Sub Inspector to Inspector are Rules 13.1 13.15 and 13.16 of Rules 1934. Rule 13.14 covers a situation where a Sub Inspector is being promoted to and in the Selection Grade of Sub Inspector. The Government of Haryana vide its order dated 29.04.1987 has abolished the Selection Grade in all Groups B C and D posts. The Sub Inspector being a Group C post there was no question of promotion in Selection Grade of any Sub Inspector after 29.04.1987. In fact none of the private respondents were promoted in the Selection Grade so as to claim applicability of Rule 13.14. The selection criteria is contained in sub rule of Rule 13 and Rule 13.15 Sub Rule of Rule 13.15 does not deal with eligibility rather it deals with inter se seniority The Haryana Police of Rules 1934. Rule 13.14 of Rules 1934 was never challenged in the writ petition but rather it was only the vires of Rule 12.2 12.8 and 13.18 that were challenged. No reliance can be placed on Rules 2017 which Rules have been notified after nine years of promotion of private respondents Rule 13.14 is an integral and inalienable part of the scheme of the Rules governing promotion to the rank of Inspector. Without Rule 13.14 there cannot be any List F and without List F no promotion can be made to the post of Inspector. The selection grades are in the nature of a promotional scale. Therefore the criteria provided for promotion to selection grade can be taken as criteria for further promotion. The requirement and rationale of eight years of service for a Sub Inspector is to discharge the higher responsibility of an Inspector. Rules 1934 have always been interpreted so by the State and all promotions were affected till new Rules were enforced in 2017 10. Learned counsel for the private respondents also adopts the submissions raised by Shri Nikhil Goel that impugned judgment of the High Court needs no interference by this Court. 11. Shri P.S. Narasimha learned senior counsel has also appeared for the private respondents. He however submits that he is not affected by the inter se dispute between the writ petitioners and the private respondents. He submits that his clients have already been promoted as Deputy Superintendents of Police. 12. We have considered the submissions made by the learned counsel for the parties and perused the 13. From the submissions of the learned counsel for the parties and materials on record following two questions arise for consideration in these appeals: Whether the mode and manner of promotion in selection grade from rank of Sub Inspector to Inspector as envisaged in Punjab Police Rules 1934 has become redundant after issuance of Government Order dated 29.04.1987 by State of Haryana withdrawing the grant of selection grade to Group A B and C employees Whether the Rule 13.14 of Punjab Police Rules 1934 which contemplate promotion to the various selection grades cannot be looked into while considering the promotion of a Sub Inspector to the rank of Inspector and requirement of having at least eight years’ approved service as an upper subordinate is no longer attracted for promotion of direct recruits Sub Inspector 14. Before we proceed to consider the respective submissions we need to look into the statutory rules governing the promotion from the post of Sub Inspector to Inspector. The statutory rules are Punjab Police Rules 1934. The appellant’s case is that only applicable rules for promotion from the rank of Sub Inspector to Inspector are Rules 13.1 13.15 and 13.16 of the Rules 1934. We need to notice the aforesaid rules which are to the following effect: “13.1. Promotion from one rank to another. Promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors qualifications whether in the nature of training courses passed or practical experience shall be carefully considered in each case. When the qualifications of two officers are otherwise equal the senior shall be promoted. This rule does not affect increments within a time scale 2) Under the present constitution of the police force no lower subordinate will ordinarily be entrusted with the independent conduct of investigations or the independent charge of a police station or similar unit. It is necessary therefore that well educated constables having the attributes necessary for bearing the responsibilities of upper subordinate rank should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for and been tested and given practical training in the ranks of constable and head constable. 3) For the purposes of regulating promotion amongst enrolled police officers six promotion lists A B C D E and F will be maintained. Lists A B C and D shall be maintained in each district as prescribed in rules 13.6 13.7 13.8 and 13.9 and will regulate promotion to the selection grade of constables and to the ranks of head constables and Assistant Sub Inspector. List E shall be maintained in the office of Deputy Inspector General as prescribed in sub rule 13.10(1) and will regulate promotion to the rank of Sub Inspector. List F shall be maintained in the office of the Inspector General as prescribed in sub rule 13.15(1) and will regulate promotion to the rank of Entry in or removal from A B C D or E lists shall be recorded in the order book and in the character roll of the police officer concerned. These lists are nominal rolls of those officers whose admission to them has been authorised. No actual selection shall be made without careful examination of character rolls. Provided that five per cent of such promotions may be made from amongst the members of the Police Force who achieve outstanding distinction in sports field at All India level or International level if they are otherwise eligible for promotion but for seniority 13.15. List F Promotion to Inspectors. Recommendations on behalf of Sergeants and Sub Inspectors considered fit for promotion to the rank of Inspector shall be submitted with their annual confidential reports on the 15th April each year to Deputy Inspector General by Superintendents of Police in Form 13.15(1). Recommendations on behalf of Sergeants and Sub Inspectors employed in the Government Railway Police will be sent direct to the Inspector General of Police by the Assistant Inspector General Government Railway Police in the same form and not later than October each year The Deputy Inspector General shall decide after seeing the officers recommended and in consideration of their records and his own knowledge of them whether to endorse the recommendations of Superintendents of Police and forwarded them to the Inspector General. He will keep a copy of any recommendation so forwarded in the personal file of the officer if he decides not to endorse a recommendation he shall retain the original in the officer’s personal file and send a copy of his own order on it to the Superintendent concerned. Deputy Inspector General shall finally submit recommendations to the Inspector General as soon as they are satisfied as to the fitness of officers recommended but in no case later than October each year. 2) Such of the officers recommended as the Inspector General may consider suitable shall be admitted to promotion list ‘F’ which will however not be published. Deputy Inspectors General shall be informed and shall in turn inform the Superintendents concerned of the names of those who have been admitted to the List similar information will be sent to the Assistant Inspector General Government Railway The original personal files of Sub Inspectors admitted to the list shall be transferred to the Inspector General after duplicates have been prepared for retention in the office of the Deputy Inspector General or the Assistant Inspector General Government Railway Police as required by Rule 13.38(1 Copies of all subsequent annual confidential reports prepared in form 13.17 in respect both of Sergeants and Sub Inspectors admitted to the list will on return by the Inspector General in accordance with rule 13.17(1) be recorded by Deputy Inspectors General or the Assistant Inspector General Government Railway Police with the duplicate personal files of the officers concerned Copies of all entries ordered to be made in personal files other than annual confidential reports will be forwarded to the Inspector General as soon as made for record with the original personal files all such copies shall be attested by the Deputy Inspector General or the Assistant Inspector General Government Railway Police personally. 3) When submitting recommendations for the entry of fresh names in List F Deputy Inspectors General and the Assistant Inspector General Government Railway Police will at the same time submit specific recommendations as to the retention or removal of officers already admitted to the list. On receipt of these recommendations the Inspector General will review the Provincial List and pass orders regarding the retention or exclusion of names at the same time communicating his decision to the Deputy Inspector General and the Assistant Inspector General Government Railway 4) Sub Inspectors admitted to List ‘F’ will be placed in that list in order according to their date of permanent promotion to selection grade and if the date of permanent promotion to selection grade is the same in the case of two or more Sub Inspectors admitted to list ‘F’ on one and the same date then according to date of permanent promotion to the time scale. Sergeants will be shown in list ‘F’ according to the date of entry in the list. When however two or more Sergeants are admitted to list ‘F’ on the same date their names will be shown in order of seniority among themselves. 13.16. Promotion to the rank of Inspector. Substantive vacancies in the rank of Inspector save those which are specially designated for the appointment of probationers shall be filled by promotion of officers from list F selected according to the principles laid down in rule 13.1. Sergeants are eligible for promotion in the appointments reserved for European Inspectors. 2) Temporary vacancies in the rank of Inspector shall be filled by the officiating promotion of officers on F list by the authorities empowered by rule 13.4 to make the appointment. Such officiating promotions shall be made in accordance with the principles laid down in sub rule 13.12(1) in the case of E list and the second part of that rule shall mutatis mutandis govern the scrutiny of the work of F list officers and the removal from that list of the names of those who are found unfit for the rank of inspector. 3) No officer whose name is not on F list shall be appointed to officiate as Inspector without the special sanction of the Inspector General. When no officer on F list is available in the range for a vacancy which the Deputy Inspector General is required to fill application shall be made to the Inspector General to appoint a man from another range.” 15. On the other hand the respondents placed reliance on Rule 13.14 which is to the following effect: “13.14. Promotions to and in the selection grades of Sub Inspectors. No Sub Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate of which at least five shall have been in the rank of Sub Inspector and unless he is thoroughly efficient and competent to hold charge of a police station of first class importance. No Sub Inspector who has been punished by reduction stoppage of increment or forfeiture of approved service for increment shall be eligible for promotion to a selection grade. Exceptions to this rule may be made only with the sanction of the Inspector General in recognition of distinguished service and exemplary 3) Sub Inspectors promoted to the 4th selection grade shall be on probation for one year and may be reverted without formal departmental proceedings during or on the expiry of the period of their probation if they fail to maintain an exemplary standard of conduct and Provided that the competent authority may if it so thinks fit in any case extend the period of probation by one year in the aggregate and pass such orders at any time during or on the expiry of the extended period of probation as it could have passed during or on the expiry of original period of probation.” 16. We may now notice the Government Order dated 29.04.1987 issued by the State of Haryana which communicates the decision of the State Government that “the present system of selection grades as it exists for the employees of Groups B C & D has been discontinued”. The effect of the G.O. dated 29.04.1987 was that there was no entitlement of a Sub Inspector or any police personnel belonging to Group C to claim selection grade. The statutory Rule 13.1 provides that promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority. The use of expression “specific qualifications whether in the nature of training courses passed or practical experience shall be carefully considered in each case” indicate that qualifications for promotion are not contained in Rule 13.1 and they have to be found out from other part of the Rules. Rule 13.1 governs both promotions from one rank to another and from one grade to another. Thus Rule 13.1 regulates promotion within the grade and from one grade to another. Rule 13.14 contains the heading “promotions to and in the selection grades of Sub Inspectors”. Rule 13.14(2) provides that no Sub Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate of which five years shall have been in the rank of Sub Inspector Now coming to Rule 13.15 which deals with “List F Promotion to Inspectors” Rule 13.15(1) deals with recommendations on behalf of Sub Inspectors considered fit for promotion to the rank of Inspector to be submitted with their annual confidential reports on the 15th April each year to Deputy Inspector General by Superintendents of Police in Form 13.15(1). 17. Rule 13.15(4) provides that Sub Inspectors admitted to List ‘F’ will be placed in that list in order according to their date of permanent promotion to selection grade. Thus date of permanent promotion to selection grade is criteria which was required to be followed for promotion to Inspector and as required by Rule 13.14(2) no Sub Inspector shall be considered eligible for promotion to a selection grade unless he has at least eight years’ approved service as an upper subordinate of which at least five years shall have been in the rank of Sub Inspector. 18. Thus promotion to selection grade of a Sub Inspector was pre condition for including the name of a Sub Inspector in List ‘F’ which is a list from which promotion to Inspector was to be made. Even though scheme of grant of selection grade was done away by the State vide its common order dated 29.04.1987 the exercise of promotion to Inspector from Sub Inspector even after 29.04.1987 was done on the basis of requirement of Rule 13.14(2) i.e. names of only those Sub Inspectors were included in List ‘F’ who have eight years of approved service as an upper subordinate to their cadre. The promotion to selection grade was contemplated under the Rules by following eligibility and criteria as laid down in the Rules. The submission of the respondents is that after the State Government withdrew the scheme of selection grade by the Government order dated 29.04.1987 all statutory provisions regarding grant of selection grade became redundant. Even if no selection grade was to be provided to any of the personnel of the Police force after 29.04.1987 the criteria which was adopted for in rank promotion was followed by the State for promotion to the next rank. The Rules contained in Chapter XIII have to be given a conjoint and meaningful reading to advance object and purpose of the Rules. The Rules provided a mode and manner for assessment of an official to move forward by means of a grant of selection grade and thereafter by the next step on the next rank. The criteria in the Rules for assessing a person that he was entitled for grant of selection grade cannot be said to be meaningless with no purpose after withdrawal of the selection grade. The grant of selection grade in the rank in which Police official was there is a step for making eligible officer to move to the higher rank. Can the argument be accepted that promotion of Sub Inspector to Inspector has been on the basis of seniority alone Whether there shall be no cap of experience when a Sub Inspector is considered to be promoted to next higher rank in grade i.e. Inspector If we accept the submission of the counsel of the respondents that the requirement as contained in Rule 13.14(2) is no longer applicable after withdrawal of selection grade there will be no requirement of any experience to any Sub Inspector for becoming an Inspector which was never the intendment of the statutory Rules. For promotion to Sub Inspector to selection grade eight years’ approved service was contemplated which was with intent that sufficient experience is gained by a Police personnel to be considered for promotion to Inspector who is to man a Police Station and has to discharge other important functions. It is relevant to notice that no amendments in the statutory Rules were made after 29.04.1987 and even after notification was issued dated 24.12.2001 substituting Rule 12.3. The case of the State before the High Court and before this Court is that even after 29.04.1987 till 2017 Rules were enforced all Sub Inspectors including direct and promotees were uniformly dealt with by insisting the requirement of eight years’ approved service as the upper subordinate for the purposes of inclusion of their names in List 19. The selection grades are in the nature of promotional scale therefore the criteria provided for promotion to selection grade can very well be taken as criteria for further promotion which is the spirit of the Rules followed uniformly by the State while effecting the promotion. The object and purpose of the Rules and methodology for evaluating the Police personnel to move in the higher rank in the same or to the next rank cannot be lost sight nor can be ignored merely because the scheme was withdrawn on 29.04.1987 No error has been committed by the State in continuing the evaluation of the Sub Inspectors on the basis of criteria as provided in Rule 13.14 while effecting 20. This Court has laid down time and again that while construing statutory Rules such construction should be adopted which may give effect to the intention or object of the Rule and no such interpretation be put which may make the Rule ineffective. We may refer to the judgment of this Court in State of Gujarat and Another vs. Justice R.A. Mehta and Others 2013) 3 SCC 1 where this Court laid down following in paragraphs 96 97 and 98 “96. In the process of statutory construction the court must construe the Act before it bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void i.e. a statute must be construed in such a manner so as to make it workable. Viscount Simon L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. 3 All ER 549stated as follows:it was observed as under:S.P Jain v. Krishna Mohan Gupta 1 SCC 191 : AIR 1987 SC 222] RBI v. Peerless General Finance and Investment Co. Ltd 1987) 1 SCC 424 : AIR 1987 SC 1023] Tinsukhia Electric Supply Co. Ltd. v State of Assam 3 SCC 709 : AIR 1990 SC 123] SCC p. 754 para 118 UCO Bank v. Rajinder Lal Capoor 5 SCC 257 : 2 SCC 263] and Grid Corpn. of Orissa Ltd. v. Eastern Metals and Ferro Alloys11 SCC 334] .)” 21. The principle of construction of statutory Rules as laid down above would apply to the interpretation of Punjab Police Rules 1934. We are of the opinion that the High Court did not commit any error in construing the Rules in the manner as was construed by the High Court. We endorse the view of the High Court interpreting the Punjab Police Rules 1934. Chapter XIII of the Rules have to be conjointly and harmoniously construed and when we construe Rules 13.1 13.14 and 13.15 we do not find any error in State promoting the Sub Inspectors to Inspectors who have eight years’ approved service to their credit at least five years being as Sub Inspectors. Thus the High Court has rightly upheld the promotion orders of private respondents. No ground is made out to interfere with the judgment of the High Court in these appeals. The appeals are dismissed. ASHOK BHUSHAN ( R. SUBHASH REDDY New Delhi March 26 2021

High Courts with Original Civil Jurisdiction Can Also Execute Foreign Decrees Under Section 44A of CPC: Supreme Court

Courts having original civil jurisdiction, can entertain a petition for executing a money decree (in excess of Rs.20 lakhs) of a foreign Court which is notified as a superior Court of reciprocating territory under Section 44A of the Code of Civil Procedure, held by the Supreme Court of India. A Bench comprising Justices Ajay Rastogi and Abhay S. Oka allowed an appeal assailing the order of the Division Bench of the Delhi High Court, in the case of M/s. Griesheim GmbH (Now Called Air Liquide Deutschland GmbH v. Goyal MG Gases Pvt. Ltd. [Civil Appeal No. 521 of 2022], which held that High Courts have no jurisdiction to execute foreign decrees under Section 44A even when it falls within the pecuniary jurisdiction of the High Court, as Section 44A is an independent provision distinct from execution of domestic decrees. The facts of the case are that appellant initiated the proceedings before the High Court of Justice, Queen’s Bench Division, Commercial Court, United Kingdom, which is notified as a superior Court of a reciprocating territory by the Central Government under Section 44A of the Code of Civil Procedure, 1908 (“CPC”). Eventually a money decree amounting to US $ 5,824,567.74 was passed in favour of the appellant. Once the decree attained finality, execution petition was filed before the Delhi High Court in 2006 as the decretal amount exceeded Rs. 20 lakhs, which was then the pecuniary limits of the original civil jurisdiction of the Delhi High Court. The jurisdiction of the High Court was objected to in terms of Section 44A. Considering the pecuniary limit, the Single Judge decided that High Court had jurisdiction, but on appeal it was reversed by the Division bench. The judgment authored by Justice Rastogi, while setting aside the judgment of the Division Bench of the High Court, held: “The expression ‘District” is defined under Section 2(4) of the Code and the term “District Court” referred under Section 44A of the   Code   although   not   defined,   but   on   conjoint   reading   of   the provision makes it clear that it refers to the local limits of the jurisdiction   of   a   principal   civil   Court   of   original   jurisdiction and it includes the local limits of the ordinary original civil jurisdiction of a High Court and   it   is   not   disputed   that   principal   civil   Court   of   original jurisdiction is normally a District Court and High Courts in India exercising ordinary original civil jurisdiction are not too many, but where there is a split jurisdiction based on its pecuniary value, notified from time to time, the District Court or the High Court in its ordinary original civil jurisdiction is competent to exercise power for execution of decree, including   money   decree   of   the   foreign   Court   of   reciprocating jurisdiction,   provided   other   conditions   are   complied   with   as contemplated under Section 44A of the Code.” The Supreme Court referred to the definition of ‘district’ provided in Section 2(4) of the CPC, which reads as under “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court. Conjointly reading Sections 2(4) and 44A, the Court noted that it includes local limits of the ordinary original civil jurisdiction of a High Court. Though all High Courts do not have ordinary original civil jurisdiction, the Court opined, those that do are competent to exercise power for execution of decrees including foreign decrees under Section 44A. The Court emphasised that the execution which would otherwise fall within the jurisdiction of the High Court based on the pecuniary limit notified under section 5(2) cannot be executed by a Civil Court just because Section 44A mentions “District Court”. Click here to read the judgment

The appellant decree holder has challenged the judgment of February 2006(in excess of Rs. 20 lakhs) of a foreign Court the earliest possible without fail keeping in view the reasonable restrictions rights which are available to the judgment debtor 1 General Manager of the Raj Durbhunga v. Coomar Ramaput Sing 14 MIA 605 : 20 ER 912 7th February 2006 and after 16 years have been rolled by still the The brief facts culled out from the record are that the appellant initiated proceedings before the High Court of Justice Queen’s Bench Division Court Kingdom(“English Court”) which is a superior Court of a Northern Island) notified under Section 44A of the Code vide Notification No. SRO 399 dated 1st March 1953 issued by the the respondent judgment debtor in UK Court on 6th February who objected the same as the judgment dated 6th February 2003 was a default decree. To meet the objection raised by the respondent the appellant approached the English Court and decree on merits of the case. At this juncture the respondent entered appearance and the English Court by a judgment and decree dated 7th February 2006 granted a money decree for a principal sum of US $ 5 824 564.74 It is pertinent to note that the respondent did not file any the execution petition before the Delhi High Court on 27th April the Delhi High Court in terms of Section 5(2) of the Delhi High if it is taken at the face value as on 20 th January 2022 may come 10. The appellant filed a petition for execution of money decree in the High Court of Delhi on 27th April 2006. A reply to the execution petition was filed by the respondent on 17th January as envisaged under Section 13 of the Code. Later a further objection was raised that the High Court of Delhi has no jurisdiction to entertain the execution petition in view of Section 11. Learned Single Judge of the High Court overruled the exceeding Rs. 20 lakhs at given point of time i.e. 27th April of Delhi holds the exclusive jurisdiction of ordinary original civil jurisdiction and after meeting out other objections on merits For the reasons stated therein the application is allowed and the property land measuring 18774 sq. yds. At 8 7 Site­IV Sahibabad Industrial Area Sahibabad District Ghaziabad in the Court within two weeks and when so deposited it shall be kept in deeds the JD will deliver to the learned counsel for the DH a 71. By this application the DH seeks a clarification that the conditional upon the Managing Director or any other way back on 20th November 2009 no reply has been filed to this 73. Consequently the application is allowed and a direction is on the date of the order dated 3rd November 2009 that no 27th April 2006 andthat as on date there is no lien charge 12. The judgment of the learned Single Judge of the High Court of Delhi dated 29th November 2013 was assailed by the respondent­ 13. The Division Bench of the High Court in the facts and circumstances considered it appropriate to examine the singular of the Code and after the parties being heard arrived at the fresh cause of action and has no co­relation with jurisdictional issues. The scheme of Section 44A of the Code is alien to the scheme of domestic execution as provided under Section 39(3) of District Court in terms of Section 44A of the Code is not vested be transferred to the Court of District Judge within whose dealt with in accordance with law which is a subject matter of 14. Dr. Abhishek Manu Singhvi learned senior counsel appearing for the appellant submits that the jurisdiction for execution of a foreign Court’s decree of a reciprocating territory vests with the by a notified superior Court of the reciprocating territory namely 1st March 1953 issued by the Ministry of Law. The High Court of the pecuniary jurisdiction) is restricted only for the purpose of Delhi Kolkata Chennai and Mumbai the High Court would have to jurisdiction” where it exceeds its pecuniary jurisdiction as being 16. Learned counsel further submits that there can be two or more Courts which are concurrently a principal civil Court of original jurisdiction subject to their pecuniary limits as being envisaged under Section 5(2) of the Act 1966. If that being so if pecuniary jurisdiction exceeds what is prescribed notified under the principal Court of original civil jurisdiction as defined under Section 5(2) of the Act 1966 and the execution petition being a Court has committed a manifest error in holding that the High Court of Delhi is not vested with the jurisdiction to entertain an execution petition as being a District Court defined in terms of 17. Per Contra Mr. Rakesh Dwivedi learned senior counsel for the respondent while supporting the finding recorded in the right conferred on a foreign decree holder for enforcement of its to the scheme of domestic execution as provided under Section the Court which passed the decree or Court of competent jurisdiction to which it is transferred for execution. So far as unequivocally confers exclusive jurisdiction in this regard on a “District Court” and the words mandating the competence of the executing Court to try the original cause in which the decree was passed are conspicuous by their absence in this provision 18. To be more specific learned counsel submits that Section 44A which gives the decree holder a fresh and new cause of action irrespective of the original character of the cause in which the understood in its ordinary limited sense of a ‘Civil Suit’ and will not include execution proceedings. Section 4 of the Delhi High error has been committed by the High Court in the impugned High Court of Delhi in exercise of its original jurisdiction is a competent Court to entertain a petition for executing a money Code is concerned the judgment and decree dated 7 th February 2006 has been passed by the notified superior Court of the reciprocating territory namely United Kingdom of Great Britain vide notification dated 1st March 1953 issued by the Ministry of In order to appreciate the submissions made it may be relevant to first take a look at the scheme of the Code and also relevant provisions of the Act 1966 which are reproduced Civil Court of original jurisdiction The provisions of Section 47 shall as from the filing of the shall refuse execution of any such decree if it is shown to the satisfaction of the court that the decree falls within any of the Explanation 1.—“Reciprocating territory” means any country or territory outside India which the Central Government may by notification in the Official Gazette declare to be a reciprocating territory for the purposes of this section and “superior courts” any decree or Judgment of such Court under which a sum of other charges of a like nature or in respect of a fine or other penalty but shall in no case include an arbitration award even if original appellate and other jurisdiction as under the law in force 2) Notwithstanding anything contained in any law for the time the Code although not defined but on conjoint reading of the provision makes it clear that it refers to the local limits of the jurisdiction of a principal civil Court of original jurisdiction and it is not disputed that principal civil Court of original jurisdiction based on its pecuniary value notified from time to time the District Court or the High Court in its ordinary original civil including money decree of the foreign Court of reciprocating jurisdiction provided other conditions are complied with as 26. Section 44A of the Code provides for execution of decrees passed by the foreign Courts in reciprocating territories. It inter superior Court of any reciprocating territory has been filed in a the extent if any to which the decree has been satisfied or the Code further lays down that provisions of Section 47 of the refuse execution of any such decree if it is shown to the satisfaction of the Court that the decree falls within any of the 27. The ordinary original civil jurisdiction of the High Court is jurisdiction of Civil Court is restricted still for the purpose of execution of a foreign decree it becomes the District Court in It leaves no manner of doubt that once the pecuniary jurisdiction at the given point of time exceeded Rs. 20 lakhs as vide notification dated 10th August 2015it is the High Court of Delhi which holds its exclusive jurisdiction as ordinary 29. Section 24 of the Punjab Courts Act 1918 of which the Division Bench has put its emphasis which is applicable to Delhi the Court of District Judge would be the principal civil Court of original jurisdiction. Under Section 5(1) of the Act 1966 the High Court of Delhi exercises all such original appellate and other jurisdiction has been taken away from the District Court and conferred with the High Court of Delhi and this original civil 30. The Division Bench has proceeded on the basis of the to the conclusion that the expression “District” as defined under the pecuniary jurisdiction exceeds as being notified under the relevant statute the jurisdiction vests exclusively with the High Court as an ordinary original civil jurisdiction for execution of a foreign decree under Section 44A subject to the just objections which are available to the parties judgment debtor as envisaged Consequently the appeal succeeds and accordingly allowed not have been executed for almost 16 years by this time we take up the matter on priority and decide the same on its own execution in accordance with law but in no case later than four 32. Pending application(s) if any stand disposed of

Dependence of the Tribunals for all their requirements on the parent Department will not extricate them from the control of the executive: High Court of Delhi

Judicial independence of the Tribunals can be achieved only when the Tribunals are provided the necessary infrastructure and other facilities without having to lean on the shoulders of the executive. This was held in the case of R Subrmanian v Union of India, [W.P.(C) 2864/2021 & CM APPL. 8636/2021] by Hon’ble Justice M. Singh in the High Court of Delhi. The petitioner who is a practicing advocate submitted that NCLT benches are to be constituted and set up in all States and at this point there are only 19 judicial members and 22 technical members. Despite the heavy load of cases, the appointments to the NCLT and NCLAT are considerably delayed. The counsel for the respondents submitted that issues raised in this petition are fully covered by the judgment of the Supreme Court in Madras Bar Association v. Union of India & Anr, 2020 SCC Online SC 962 where the Supreme Court has directed the formation of a `National Tribunals Commission’ to take care of the administrative and infrastructural needs of tribunals. While the said Commission is formed, as an interregnum measure, the Court has also provided for the setting up of a separate `Tribunals wing’ in the Ministry of Finance. The Court has perused the judgment of the Supreme Court in Madras Bar Association (supra). Clearly, the judgment covers the issues which have been raised by the Petitioner, including in respect of appointments to Tribunals, enquiries against members, monitoring of the functioning and the filling up of vacancies in Tribunals, as well as assessment of the workload and providing all adequate infrastructure. The mounting arrears in the Tribunals is mainly due to the delay in filling up the vacancies of the Presiding Officers and members of the Tribunals. The learned Amicus Curiae suggested that there should be a National Tribunals Commission manned by retired Judges of the Supreme Court, Chief Justices of the High Courts and Members from the Executive which will have a full-time Secretary performing the following functions: a) Selection of candidates; b) Re-appointment of candidates; c) Conducting of inquiry against Members; d) Sanction leave of Members wherever necessary; e) Monitor the functioning of the Tribunals, in particular, the arrears and disposal of cases and filling up of vacancies and ensuring adequate infrastructure; and f) Ensure adequate infrastructure and IT support.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 2864 2021 & CM APPL. 8636 2021 Through: Mr. R. Subramanian Petitioner Date of decision: 4th March 2021 UNION OF INDIA REPRESENTED THROUGH: THE SECRETARY MINISTRY OF CORPORATE AFFAIRS Through: Mr. Chetan Sharma ASG with Mr JUSTICE PRATHIBA M. SINGH Prathiba M. Singhissue a writ of mandamus or any other appropriate writ or order or direction in the nature of Writ directing the 1st and 2nd Respondents to forthwith assess the requirement of the number of tribunals of the 2nd Respondent based on analysis of the relevant variables including the case filing load and the planned times and the estimated hearing times issue a writ of mandamus or any other appropriate writ order or direction under Article 226 of the Constitution of India directing the 1st recruitment plan to ensure that the recruitments are made in advance of the vacancies arising from c) Issue rule nisi in terms of prayersandpass such other and further order orders as this Hon ble Court may deem fit and proper in the facts and circumstances of the present case.” A perusal of the reliefs shows that the Petitioner prays for a direction to be issued to the Ministry of Corporate Affairs and the NCLT to assess the requirement of the number of tribunals of the NCLT and for this Court to formulate a rolling recruitment plan for the NCLT This Court has perused the judgment of the Supreme Court in Madras Bar AssociationSelection of candidates b) Re appointment of candidates c) Conducting of inquiry against Members of Members wherever e) Monitor the functioning of the Tribunals in particular the arrears and disposal of cases and filling up of vacancies and ensuring adequate infrastructure and f) Ensure adequate infrastructure and IT support 20. In view of the preceding discussion we direct the India to set up a National Tribunals Commission as suggested by this Court by its order dated 07.05.2018 at the earliest. Setting up of such Commission would enhance the image of the Tribunals and instill confidence in the minds of the litigants Dependence of the Tribunals for all their requirements on the parent Department will not extricate them from the control of the executive. Judicial independence of the Tribunals can be achieved only when the Tribunals are provided the necessary infrastructure and other facilities without having to lean on the shoulders of the executive. This can be achieved by establishment of an independent National Tribunals Commission suggested above. To stop the dependence of Tribunals on their parent Departments for routing their requirements and to ensure speedy administrative decision making as an interregnum measure we direct there should be a separate “tribunals wing” established in the Ministry of Finance Government of India to take up deal with and finalize requirements of the National Tribunals Commission is established.” Directions have been issued for setting up of the `National Tribunals Commission’ and in the interregnum for the setting up of a separate tribunals wing’ in the Ministry of Finance. Thus the reliefs sought herein are completely covered by the said judgment it has been more than three months since the judgement has been rendered it only needs to be emphasised that the directions given by the Supreme Court ought to be implemented expeditiously by the Respondent Authorities 9. With these observations the present petition along with all pending applications is disposed of MARCH 4 2021 PRATHIBA M. SINGH Page

FIR quashed on the grounds of no allegations remained: Supreme Court of India

Supreme Court of India had to quash the FIR filed by the mother of the victim for abducting her daughter because all the allegations were taken back against the accused. The decision was taken by the bench of Hon’ble Justice Hemant Gupta and Justice Ravindra Bhat in the case of Vishwas Bhandari vs. State of Punjab [Criminal Appeal no. 105 of 2021]. In the instant case, an FIR was lodged by the mother of the victim against two accused of forcefully kidnapping her 17-year-old daughter by alluring her for the purpose of marriage. An FIR was lodged u/s 363 and 366 A of the Indian Penal Code. On further investigation, a report u/s 173 of CrPC was also filed against the accused. In the High Court of Punjab & Haryana, the accused were held u/s 482 of the Code of Criminal Procedure, 1973. But when the matter reached the Supreme Court, the complainant (Mother of the victim) gave the statement restricting the allegations against one accused only stating that “My daughter has solemnized marriage with accused Vikram on 4 August 2013 both the families had solemnized the said marriage at Gurudwara Sahib of Khera Road, Phagwara. I have attended the said marriage; we prepared CD and also clicked photos of the said marriage. Thereafter, Lunch was served at Poonam Hotel, Phagwara. After marriage, my daughter and accused Vikram stayed with us”. When the same was asked from the victim, she also refused all the allegations against the accused (Vikram) and stated that the accused had promised to marry her and then took her to his parents’ house and kept her in his house until she was 18 years of age and only then contacted her parents. It was on 24.7.2013 that the accused Vikram Roop Rai called her parents and it was decided that both of them would get married. Subsequently, she married the accused on 4.8.2013. It was observed that there were no signs of forceful abduction and the victim herself agreed to the fact that she was known to the accused and wasn’t forced to marry him. Their marriage also got solemnized by the consent of both the families. Hence, the court considered all the facts and decided to acquit Vikram Roop Rai (Accused 1). The second accused (appellant) made an appeal in Supreme Court for quashing the FIR against him too because the victim and the complainant’s mother had already taken back all the charges against both the accused. Hence, Court came to the conclusion to quash the FIR of the appellant too on the grounds of no allegations left against him. The court contended that “The main allegation was against Vikram Roop Rai but the prosecutrix married him on 4.8.2013 and had given birth to two children out of that wedlock. In the absence of any allegation against the appellant, we find that the continuation of proceedings against him is nothing but an abuse of the process of law. Since there is no evidence against the appellant; the proceedings initiated against him on the basis of FIR would be untenable”. Therefore, Supreme Court set aside the orders of the High Court of Punjab & Haryana and quashed the FIR against the accused.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 105 OF 2021 ARISING OUT OF SLPNO. 6289 OF 2020 STATE OF PUNJAB & ANR JUDGMENT The challenge in the present appeal is to an order dated 16.10.2020 passed by the learned Single Bench of the High Court of Punjab and Haryana whereby the petition filed by the appellant under Section 482 of the Code of Criminal Procedure 19731 was dismissed. An FIR No. 31 dated 27.1.2013 was lodged by Rashmi Adhen wife of Mohanjit Singh for the offences under Sections 363 and 366 A of the Indian Penal Code 18602. The allegations were that her eldest For short the ‘Code’ For short the ‘IPC’ daughter 17½ years of age went out of her house on 23.1.2013 at about 12 noon in the absence of the complainant and her husband. It was averred that Vikram Roop Rai and the present appellant had kidnapped her daughter by alluring her for the purpose of marriage. Upon completion of the investigation a report under Section 173 Code was filed against Vikram Roop Rai. Furthermore proceedings for declaring the appellant as proclaimed offender were also In the proceedings before the Court the complainant appeared and recorded her statement while restricting her allegations in respect of Vikram Roop Rai only. In the cross examination she inter alia stated to the following effect “My daughter has solemnised marriage with accused Vikram on 4 August 2013 both the families had solemnised the said marriage at Gurudwara Sahib of Khera Road Phagwara. I have attended the said marriage we prepared CD and also clicked photos of the said marriage Thereafter Lunch was served at Poonam Hotel Phagwara After marriage my daughter and accused Vikram stayed The prosecutrix appeared as PW 2. She deposed that accused Vikram Roop Rai had taken her on the promise that he would marry her. He took her to his parents’ house and kept her in his house until she was 18 years of age and only then contacted her parents. It was on 24.7.2013 that the accused Vikram Roop Rai caller her parents and it was decided that both of them would get married. Subsequently she married the accused on 4.8.2013 The learned Additional Sessions Judge vide order dated 13.8.2013 held that neither the complainant nor the prosecutrix have disclosed the exact date of birth. Further no birth certificate was produced to show that the age of the prosecutrix was less than 18 years on the alleged date of occurrence of abduction. The learned trial court recorded the following finding “21. Although the prosecutrix PW2 in her examination in chief has stated that the accused had abducted her on the pretext that he will solemnized marriage but how and where abducted her has not been explained by her Admittedly it is stated by her that was known to her There is nothing in the statement of this witness that she tried to escape from the clutches of the accused or that she was forced to marry him. Even if it is presumed that the prosecutrix was minor but if she leaves her parents home in every case it cannot be held that it is the accused who has possibly abducted the prosecutrix Prosecutrix was known to the accused went with him married him with consent of both families had two children with him then it cannot be said that she was taken out forcibly from the custody of her lawful guardian as it is not proved that she is minor as non production of birth certificate issued by Registrar of Births and Deaths Jalandhar gives rise to the presumption that the same could have shown her to be major and hence doubt creeps into the version of the prosecution the benefit of which is to be given to the With these findings the accused Vikram Roop Rai was It is thereafter the appellant invoked the jurisdiction of the High Court for quashing of the FIR and subsequent proceedings inter alia on the ground that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. In fact the prosecutrix married Vikram Roop Rai the main accused and had two children with him. Such marriage was with the consent of their families. Since there is no shred of evidence against the appellant therefore continuation of proceedings against the appellant would amount to abuse of process of law. We have heard learned counsel for the parties We find that the evidence of the prosecutrix and the complainant before the Court shows that there is no allegation whatsoever against the appellant. The main allegation was against Vikram Roop Rai but the prosecutrix married him on 4.8.2013 and had given birth to two children out of that wedlock. In the absence of any allegation against the appellant we find that the continuation of proceedings against him is nothing but an abuse of process of Since there is no evidence against the appellant the proceedings initiated against him on the basis of FIR would be untenable. The High Court was thus not justified in dismissing the petition against the 11. Hence the present appeal is allowed. The order passed by the High Court is set aside and the entire proceedings consequent to FIR No. 313 and charge sheet stand quashed. S. RAVINDRA BHAT NEW DELHI FEBRUARY 03 2021

Revision petition demanding the reduction of punishment to juvenile dismissed to serve the ends of justice – Jharkhand high court

Revision petition demanding the reduction of punishment to juvenile dismissed to serve the ends of justice – Jharkhand high court In a criminal revision petition directed against the Criminal Appeal No. 63 of 2009 the petitioner was found guilty of committing the offenses under Sections 302/34 and 201/34 of the Indian Penal Code and has been sent to a special home for 3 years the judgment was given by the juvenile justice authority and is reviewed the learned appellate court and is found to be appropriate the present application was filed to revise this judgment and is heard by a single bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Arun Kumar Prajapati versus The state of Jharkhand (Cr. Revision No. 585 of 2012). The learned counsel appearing on behalf of the petitioners submits that the case will not be argued on behalf of merit but the point of a sentence imposed upon the petitioner. The petitioner was juvenile at the time and was booked under  Sections 302/34 and 201/34 of IPC. Currently, the present age of the petitioner Is 34 years, and accordingly, the conviction can be upheld but for the punishment, the counsel relied on the case of 1999 (1) PLJR 732 (SC) (Devendra Yadav –vs- The State of Bihar) and 1990 CriLJ 2671 (SC) (Bhoop Ram –vs- State of U.P.) and 2008 (4) JCR 373 (Jhr.) Ashok Kumar Singh -vs- State of Bihar (Now Jharkhand) and the punishment may be set aside in the case. The learned counsel on behalf of the respondents submits that the prayer made on behalf of the petitioner and submitted that concurrent findings have been recorded by the learned Juvenile Justice Board and the learned appellate court and accordingly, no interference is called for in revisional jurisdiction. The learned court after hearing the parties finds that the judgment given by the juvenile justice board had found the petitioner and his relatives guilty of causing dowry death as per the presumption under Section 113-B of the Evidence Act and under Sections 302/34 and 201/34 of the Indian Penal Code and the petitioner was sent to a special home for 03 years. The learned appellate court again considered the pieces of evidence and reviewed the judgment and found out that the judgment passed by the learned Juvenile Justice Board is legal, proper, and sustainable in the eye of law and refused to interfere and confirmed the same and the learned court also does not find any illegality or perversity in the findings recorded by the learned courts below in their judgments and this court is of the view that the offense has been committed by the petitioner and therefore, reducing the punishment of the petitioner would not serve the ends of justice and with this, the petitioner does not deserve any reduction in the punishment. Accordingly, the period of detention of the petitioner is also maintained. The judgments relied upon by the learned counsel of the petitioner do not apply to the facts and circumstances of the present case where the allegations against the petitioner were enquired into as a juvenile before the Juvenile Justice Board under Juvenile Justice (Care and Protection of Children) Act, 2000. This court founds the judgment and order by the lower courts to be appropriate and dismissed the revision petition. Click here to read the judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 5812 Arun Kumar Prajapati son of Sri Shivnath Prajapati resident of Village Budhibir P.O. & P.S. Chainpur District Palamau … … … Petitioner State of Jharkhand … … Opp. Party Versus CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State Mr. Pankaj Kumar Dubey Advocate Mr. P.D. Agarwal A.P.P. 1. Heard Mr. Pankaj Kumar Dubey learned counsel appearing 2. Heard Mr. P.D. Agarwal learned counsel appearing for the on behalf of the petitioner. Opposite Party State. The present criminal revision application is directed against the Judgment dated 30.05.2012 passed by the learned Addl. Sessions Judge I Palamau at Daltonganj in Criminal Appeal No. 609 whereby and whereunder the learned appellate court confirmed the Judgment passed by the learned Juvenile Justice Board Palamau at Daltonganj and dismissed the criminal appeal preferred by the petitioner. The petitioner had preferred the criminal appeal against the Judgment dated 19.06.2009 passed by the learned Juvenile Justice Board Palamau at Daltonganj in G.R. Case No.793 of 2001 T.R. No. 3109whereby and whereunder the petitioner was held to be a Juvenile in conflict with law and was found guilty for committing the offences under Sections 302 34 and 201 34 of the Indian Penal Code and was directed to be sent to Special Home at Chirudih Dhanbad for a period of 03 years. 2 Arguments on behalf of the petitioner Learned counsel for the petitioner submitted that he does not want to argue the case on merit and he argued on the point of sentence imposed upon the petitioner. He submitted that the date of occurrence is 19.06.2001 on which the petitioner was a juvenile and the marriage had taken place in the year 1998. Learned counsel submitted that F.I.R. was registered under Section 304B 34 of IPC but the petitioner was ultimately found to be a juvenile and the inquiry was conducted and he was found guilty of the offences under Sections 302 34 and 201 34 of IPC. He submitted that the present age of the petitioner is 34 years and accordingly the conviction may be upheld but so far as the punishment awarded to the petitioner is concerned appropriate direction may be issued in view of the judgments passed by the Hon’ble Supreme Court reported in 1999PLJR 732(Devendra Yadav vs The State of Bihar) and 1990 CriLJ 2671 (Bhoop Ram vs State of U.P.) and passed by this Court reported in 2008 JCR 373 Jhr.) Ashok Kumar Singh vs State of Bihar and the punishment may be set aside. Arguments on behalf of the Opposite Party State Learned A.P.P. appearing on behalf of the Opposite Party State opposed the prayer made on behalf of the petitioner and submitted that concurrent findings have been recorded by the learned Juvenile Justice Board and the learned appellate court and accordingly no interference is called for in revisional jurisdiction. Findings of this Court The prosecution case is based on the fardbeyan of the Informant namely Ambika Prajapati alleging inter alia that the Informant’s daughter namely Anapurna Devi was married with the petitioner in the year 1998 and 3 after six months he brought his daughter to his house where she told him that her father in law mother in law and husband used to torture her to meet the demand of dowry. After sometime the petitioner took his wife back to her marital house. After sometime the Informant’s son Jaiprakash Prajapati visited to see his sister and after returning he narrated to his parents that the mother in law father in law and husband of his sister were demanding cash of Rs.10 000 gold chain and T.V. as dowry and for fulfilment of the demand they were subjecting cruelty to her. Thereafter the Informant visited the marital house of his daughter where the father in law mother in law and husband of his daughter told him that if their demand of dowry could not be met they would not keep his daughter. Knowing this fact the Informant brought his daughter to his house in the month of February 2001. Thereafter a panchayati was held where the in laws assured the Panches to keep his daughter properly and in a dignified manner and the Informant sent his daughter to her marital house. It was further alleged that one week prior to the date of occurrence on 19.06.2001 Jaiprakash Prajapati had visited the marital house of his sister at Budhibir and after coming back he disclosed that the husband and in laws of his sister used to give threatening to her that they would kill her. It was alleged that on 19.06.2001 at 12 O’Clock Shiv Nath Prajapati the Samadhi of the Informant came to the village of the Informant and informed him that in the evening of 18.06.2001 his daughter had gone somewhere and since then she was missing. Thereafter the Informant went to Village Bhudhibir where he came to know that the dead body of his daughter was found in a well situated at some distance from her marital house. Thereafter the Informant informed the police and got his fardbeyan recorded. 8. On the basis of the fardbeyan the case was registered as 4 Chainpur P.S. Case No. 71 2001 dated 19.06.2001 under Sections 304(B) 201 of IPC and Section 3 4 of the Dowry Prohibition Act against the petitioner and his parents. After completion of investigation Investigating Officer submitted Charge sheet No.99 2001 dated 31.07.2001 under Section 302 201 34 of IPC against them and on the basis of the materials on record cognizance was taken in the case under the aforesaid sections. 9. On the basis of the order dated 07.08.2002 passed by this Court in B.A. No. 2054 2002 the learned C.J.M. vide order dated 05.10.2002 declared the petitioner to be a Juvenile on the date of occurrence and separated his case and sent his case record to the court of the learned A.C.J.M. Palamau the then designated court for Juvenile for further inquiry in accordance with law. 10. Thereafter the substance of accusation for the offences under Sections 302 and 201 of IPC was read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to face the inquiry under law. In course of inquiry the prosecution examined altogether five witnesses in support of its case. P.W. 1 is Jagdish Prajapati P.W. 2 is Jaiprakash Prajapati P.W. 3 is Ambika Prajapati P.W. 4 is Murat Yadav and P.W. 5 is Dr. G.P. Singh. 12. Thereafter on 09.09.2005 the statements of the petitioner were recorded wherein he simply denied evidences put to him and claimed to be innocent. The petitioner did not examine any witness in his defence. 13. The learned Juvenile Justice Board Palamau at Daltonganj considered the evidences on record and recorded its findings in Para 14 that there is no direct evidence of murder of the deceased because there is no eye witness of the occurrence of murder and the whole case of the prosecution rests on the circumstantial evidence. The prosecution has relied upon the 5 circumstances that there had been marital discord between the deceased and her husband and in laws and the deceased was being tortured and ill treated by her husband and in laws because of their demand of cash of Rs.10 000 one colour T.V. and one Golden Chain as dowry. The learned Juvenile Justice Board found that the evidence of P.W. 3 Informant P.W. 2 brother of the deceased and P.W. 1 are consistent and devoid of any contradictions. From their evidence it has clearly been established that the deceased was being subjected to cruelty by her husband and in laws because of the demand of dowry. The doctor has found antemortem injuries on the dead body of the deceased. The doctor has also found black mark on the front of the neck of the deceased and also found that the tongue was protruded and the eye balls were protruding out of the sockets. The evidence of the doctor who conducted post mortem on the dead body of the deceased reveals that the deceased was first murdered by compressing her neck due to which black mark was available on the neck and blood had come out from the mouth of the deceased and thereafter the dead body was thrown in the well in order to give it the colour of suicide. The learned Juvenile Justice Board further recorded the prosecution established circumstances that the deceased was being tortured and ill treated for dowry and it has also been proved that the motive of murder of the deceased was marital discord because of demand of dowry. 14. The learned Juvenile Justice Board further recorded in Para 15 that the other circumstance relied upon by the prosecution is that subsequent conduct of the father in law of the deceased who went to the village of the father of the deceased and informed her father that the deceased had left her house and was missing since last evening. P.W. 3 P.W.2 and P.W.1 stated that Shiv Nath Prajapati came and informed that the deceased 6 had gone somewhere and was missing which was a false information either to give it a colour of suicide or to prevent himself from being suspected by anyone. The evidence of the doctor shows that the deceased was murdered by pressing her neck leading to Asphyxia. In such circumstances the past conduct of the father of the petitioner finds importance and is also one of the circumstances leading to guilt of the petitioner and his family members committing murder of the deceased. 15. The learned Juvenile Justice Board further recorded in Para 16 that all the circumstances appearing in evidence were explained to the petitioner but he offered no explanation which itself forms an additional link in the chain of circumstances to point out his guilt. 16. The learned Juvenile Justice Board further recorded in Para 18 that there is no dispute that the deceased was a legally married wife of the petitioner and the prosecution evidence establishes that the deceased was being subjected to cruelty by the petitioner and in laws. The prosecution further establishes that soon before the death of the deceased she had been subjected to cruelty or harassment by the petitioner and in laws for their demand of dowry of Rs.10 000 cash T.V. and golden chain and her death was due to strangulation or throating which took place under unnatural circumstances within 7 years of marriage. Therefore all the circumstances show that the petitioner or his relatives shall be deemed to be guilty of causing dowry death as per the presumption under Section 113 B of the Evidence Act. This conclusive presumption also provides an additional circumstances leading to the guilt of the petitioner and his family members. 17. The learned Juvenile Justice Board further recorded in Para 19 that the above circumstances are sufficient to negate the innocence of the petitioner and to bring home the offence 7 beyond all reasonable doubts. All the circumstances are conclusive in nature and are also complete and there is no gap left in the chain of evidence. The circumstances are consistent with the hypothesis of the guilt of the petitioner and totally inconsistent with his innocence. The learned Juvenile Justice Board further recorded that the father in law namely Shiv Nath Prajapati and the mother in law namely Mulla Devi have already been convicted and sentenced by the court of the learned 4th Additional Sessions Judge Palamau at Daltonganj vide Judgment dated 25.01.2005 and their appeal is pending before the High Court. The petitioner was husband of the deceased and the evidence shows that he was also involved in the occurrence of cruelty to the deceased because of demand of dowry and thus he shared common intention alongwith his parents for committing the murder of the deceased. The prosecution has proved its case beyond all reasonable doubts. The learned Juvenile Justice Board further recorded that the petitioner has caused the evidence of the commission of the offence to disappear by throwing the dead body in a well in the outskirt of the village in order to give it a colour of suicide and also shared common intention for giving false information to the parents of the deceased by suppressing the occurrence. 18. The learned Juvenile Justice Board held the petitioner to be a Juvenile in conflict with law and found him guilty for committing the offences under Sections 302 34 and 201 34 of the Indian Penal Code and ordered to send him to the Special Home at Chirudih Dhanbad for a period of 03 years. 19. The learned appellate court again considered the evidences on record and in Para 7 of its judgement re appreciated the evidence of P.W. 3 the Informant and further recorded that P.W. 1 has corroborated the testimony of P.W. 3 and P.W. 2 has also corroborated the statements of P.W. 3. P.W. 4 is a hostile witness but he has admitted his signature on the 8 inquest report. P.W. 5 Dr. G.P. Singh testified that he had conducted post mortem examination on the dead body of the deceased. After external examination he had found the tongue protruded and beaten between teeth and the eye balls protruding out of the sockets. He opined the cause of death as due to compression over neck leading to Asphyxia. He proved the post mortem report as Exhibit 1. 20. The learned appellate court further recorded in Para 8 that the learned Juvenile Justice Board has rightly found that because of marital discord between the bride and the bridegroom she was murdered by the petitioner and to screen himself and to conceal disappear the evidence her dead body was thrown in a well at the outskirt of the village. As per the medical evidence it becomes clear that the deceased had died of homicidal death due to compression over her neck leading to Asphyxia. The learned appellate court further recorded that the case is based on circumstantial evidence as there is no ocular evidence and the chain of circumstances is complete and linked together pointing that the petitioner committed the offence and one of the important circumstances is that there had been marital discord between the deceased and her husband and she was being ill treated and subjected to extreme cruelty by the petitioner for demand of dowry. On the basis of the above findings the learned appellate court found that the judgment passed by the learned Juvenile Justice Board is legal proper and sustainable in the eye of law and refused to interfere and confirmed the same. 21. The learned appellate court in Para 9 also considered the argument regarding attaining majority by the petitioner at the time of appeal vis a vis the period of detention awarded to the petitioner in terms of Section 15(1)(g) of the Juvenile Justice Care & Protection of Children) Act 2000 and recorded that the petitioner has already stayed in Remand Home Ranchi 9 from 25.06.2001 to 11.06.2003. The learned appellate court ordered to send the petitioner to the Borstal School Central Jail Medininagar for his stay there for the rest period out of three years and also refused to interfere with the period of detention for three years awarded to the petitioner and dismissed the appeal. 22. This Court finds that both the learned courts below have recorded consistent and concurrent findings regarding committing the offences under Sections 302 34 and 201 34 of IPC by the petitioner after appreciating the materials on record. This Court does not find any illegality or perversity in the findings recorded by the learned courts below which are well reasoned judgements. Accordingly the finding of guilt of the petitioner committing the offences under Sections 302 34 and 201 34 of the Indian Penal Code by the learned Juvenile Justice Board Palamau at Daltonganj which has been confirmed by the learned appellate court is upheld. 23. Moreover the learned counsel for the petitioner has not challenged the judgement of conviction but has limited his arguments to the fact that the petitioner has already attained the age of 34 years and has relied upon certain judgements to submit that in such circumstances the conviction be upheld but the petitioner be released. In the present case though the petitioner has remained in detention for a period of more than 02 years out of the total detention period of 03 years and the present age of the petitioner is 34 years but this Court cannot lose sight of the manner in which the offence has been committed by the petitioner and therefore reducing the punishment of the petitioner would not serve the ends of justice. 25. This Court is of the view that one of the prime concerns of the juvenile justice system is to ensure that the delinquent juvenile is also prevented from reoffending. In fact the punishment 10 three years itself is a part of process of reintegration of the petitioner with the society and for that purpose the petitioner has to take responsibility of his act being illegal. 26. This Court finds that considering the nature of offence involved in the present case and the manner in which it has been committed the petitioner does not deserve any reduction in the punishment. Accordingly the period of detention of the petitioner is also maintained. 27. On the point of attaining majority by the petitioner after the occurrence the learned counsel appearing for petitioner has relied upon the judgments passed by the Hon’ble Supreme Court reported in 1999 PLJR 732 1990 CriLJ 2671 supra) and 2008JCR 373PLJR 732 was passed under the provisions of Juvenile Justice Act 1986 and a point was taken for the first time before the appellate court that the appellant was a juvenile and was found to be juvenile on the date of occurrence after due enquiry. The Hon’ble High Court accepted the submission of the appellant that he be not sent to juvenile court for passing order in accordance with Sections 21 and 22 of the said Act of 1986 as the appellant was 31 years of age and in such circumstances the conviction was upheld and the sentence of imprisonment was set aside. 29. The judgement reported in 1990 CriLJ 2671was passed by the Hon’ble Supreme Court and the matter was under the provisions of U.P. Children Act. In the said case the appellant was convicted along with other adults in the trial and was sentenced for life should have been treated as “child” under the provisions of U.P. Children Act and sent to an approved school for detention till he attained 18 years of age. The age of the appellant was enquired into by virtue of the orders of the Hon’ble Supreme Court and he was found to be less than 16 years on the date of occurrence. In this back ground the 11 Hon’ble Supreme Court recorded that the appellant was already 28 years of age and there was no question of sending him to an approved school under U.P. Children Act and consequently sustained the conviction but quashed the sentence and directed his release forthwith. In the judgement reported in 2008 JCR 373 the appellants were convicted for life by the trial court but the appellants were found to be juvenile on the date of occurrence and accordingly upheld the conviction and set aside the sentence as under Section 16 of Juvenile Justice Act 2000 no juvenile can be sentenced to life imprisonment. 31. The aforesaid judgements relied upon by the learned counsel of the petitioner do no apply to the facts and circumstances of the present case where the allegations against the petitioner was enquired into as a juvenile before the Juvenile Justice Board under Juvenile JusticeAct 2000 and upon finding him guilty an order of detention has been passed and now the petitioner has attained an age of 34 years. In the case of Salil Bali v. Union of India reported in7 SCC 705 Para 63 it has been held that the essence of the Juvenile Justice Act 2000 and the Rules framed thereunder in 2007 is restorative and not retributive providing for rehabilitation and reintegration of children in conflict with law into mainstream society. The Hon’ble Supreme Court also corrected the misunderstanding of the law relating to the sentencing of the juveniles and considered the general understanding that after attaining the age of eighteen years a juvenile who is found guilty of a heinous offence is allowed to go free. The Hon’ble Supreme Court considered Section 15(1)(g) as it stood before and after the amendment which came into effect from 22.8.2006 and 12 held that the amendment now makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have to undergo a sentence of three years which could spill beyond the period of one year when he attained majority. 33. On this issue this Court finds that the learned appellate court has already dealt with the same at Para 9 of its judgment and has ordered to send the petitioner to the Borstal School Central Jail Medininagar for his stay there for the rest period out of the total detention period of three years which is an appropriate order in the present case. In view of the aforesaid judgement passed in the case of Salil Bali v. Union of India reported in7 SCC 705 this Court is not inclined to interfere with the direction issued by the learned appellate court in this regard. Consequently the present criminal revision application is hereby dismissed. 35. Bail bond furnished by the petitioner is cancelled. 36. Pending interlocutory application if any is dismissed as not 37. Let the Lower Court Records be sent back to the learned Juvenile Justice Board court concerned. 38. Let a copy of this order be communicated to the learned court below through “email FAX”. Anubha Rawat Choudhary J.)

“Under S.19(1) of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority.”: SEBI, Part 2.

In her application the appellant was seeking the following information: The appellant has filed an appeal on the ground that the access to the information requested was refused. The respondent, in response to query number 1, informed that in IGRP proceedings, complainant is one of the parties to the proceedings, appellant is one of the parties to the proceedings. Further, as per process, the exchange forwards the IGRP order to the complainant. In the instant cases, IGRP order 24th of November, 2015 has already been forwarded by exchange and SEBI also uploaded the same on SCORES portal. Hence, the appellant was advised to approach the concerned stock exchange for copy of the IGRP order. In response to query number 2, the respondent observed that the information sought is not available with SEBI. In response to query numbers 3 and 4, the respondent informed that copy of IGRP order dated November 24, 2015 was uploaded on SCORES, pursuant to complaint lodged by the appellant on the SCORES Portal. The respondent also stated that the appellant may directly approach the exchange for the requisite data pertaining to the exchange. Appellate Authority, for query number 1 perused the query and the response provided thereto and noted that the appellant sought copy of order passed by the IGRP. It is understood that the copy of the said order has already been forwarded by the exchange to the complainant. Further, the respondent also stated that the said order has been uploaded on the SCORES portal, against complaint filed by the appellant. It was found that the information sought can be accessed by the appellant herself. Further, the information which is already in the possession of the citizen cannot be said to be “held” by the public authority.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 14 2021 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated May 07 2021. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 07 2021 i.e. approximately three weeks after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the responses and the Appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated April 14 2021 sought the available on record. following information: 1. Upload here a copy of IGRP dated November 24 2015. Appeal No. 43621 2. Upload the Exchanges Complaint Form so that against which complaint details IGRP dated November 24 2015 was called by the Exchange. 3. Provide the Exchange official web link where the data of the same complaint IGRP dated November 24 2015 details is electronically saved by the Exchange. 4. Provide the Exchange weblink where copy of IGRP dated November 24 2015 is electronically saved by the Exchange. The respondent in response to query number 1 informed that in IGRP proceedings complainant is one of the party to the proceedings appellant is one of the party to the proceedings. Further as per process the exchange forwards the IGRP order to the complainant. In the instant cases IGRP order November 24 2015 has already been forwarded by exchange and SEBI also uploaded the same on SCORES portal. Hence the appellant was advised to approach the concerned stock exchange for copy of the IGRP order. In response to query number 2 the respondent observed that the information sought is not available with SEBI. In response to query numbers 3 and 4 the respondent informed that copy of IGRP order dated November 24 2015 was uploaded on SCORES pursuant to complaint lodged by the appellant on the SCORES Portal. The respondent also stated that the appellant may directly approach the exchange for the requisite data pertaining to the exchange. 6. Ground of appeal The appellant has filed an appeal on the ground that the access to the information requested was refused. 7. Query number 1 I have perused the query and the response provided thereto. I note that the appellant sought copy of order passed by the IGRP. It is understood that the copy of the said order has already been forwarded by the exchange to the complainant. Further the respondent also stated that the said order has been uploaded on the SCORES portal against complaint filed by the appellant. I find that the information sought can be accessed by the appellant herself. Further the information which is already in the possession of the citizen cannot be said to be “held” by the public authority. In this context reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors.wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by Appeal No. 43621 the appellant. Without prejudice to the same I note that the respondent has guided the appellant to approach the concerned stock exchange. Accordingly the query number 1 of the application is adequately addressed. Therefore I do not find any deficiency in the response. 8. Query number 2 On consideration I do not find any reason to disbelieve the observation of the respondent that the information sought is not available with SEBI. In this context I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… 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. 9. Query numbers 3 and 4 I have perused query numbers 3 and 4 and the response provided thereto. I note that the respondent has clearly informed regarding the availability of the IGRP order on the SCORES Portal since the complaint was lodged on the said portal. Further the appellant was also advised to directly approach the exchange for the requisite data pertaining to the exchange. On consideration I find that the respondent has adequately addressed the queries by providing the information available with him. Accordingly 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

Liquor carrying vehicle to be released only after confiscation proceedings take place: High Court of Patna

When a vehicle has been confiscated for carrying liquor or intoxicating substance unlawfully, it can be released by a court order only after the proceedings have been initiated by the concerned authorities under the State Excise Act. This was decided in the case of Jayendra Mohan v. State of Bihar and Ors [Civil Writ Jurisdiction Case No.2016 of 2021] by the double bench consisting of Hon’ble Judges-  Chief Justice Sanjay Karol and Justice S. Kumar in the High Court of Patna. The petitioner in this case sought the relief for For issuance of a writ in the nature of mandamus or any other appropriate writ/ directions commanding the respondents to releases the Swift Dzire Maruti Car. in favour of the petitioner which has been seized in connection with Gopalganj Excise Case No.199/2020 registered for the offence punishable under Section 30(a) of Bihar Prohibition and Excise Act, 2016. TI must be noted that under section 58 power to issue an order of confiscation vests with the District Collector/Authorized officer, who upon receipt of the report of the seizing officer detaining such property is required to pass an order. The counsel states that petition be disposed of in terms of the various orders passed by this Court and the counsel for the respondents has no objection to the same. The court listed the issues as being: (a) where despite seizure, no proceedings for confiscation under Section 58 were initiated; (ii) where such proceedings were initiated but not concluded within a reasonable time; (c) the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions, did not participate in the confiscatory proceedings; (d) where the order of confiscation was neither communicated nor the parties made aware of such fact, thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act; (e) proceedings initiated under Section 92/93 were not concluded within a reasonable time either on account of inaction on the part of the authority(s) or on account of non-cooperation of the private parties. It relied upon the case of Manish Kumar Chaudhary versus the State of Bihar & Ors. [CWJC No.3245 of 2017] where it was held “Wherever proceedings for confiscation have not started, the Appropriate Authority constituted under the Act, shall positively initiate the same within a period of four weeks from today. In any event, petitioner undertakes to appear in the office of the concerned appropriate authority/the concerned District Magistrate. . The said Officer shall forthwith, and not later than four weeks from today, initiate the proceedings and after compliance of principles of natural justice, take a decision thereupon within a period of two months.” It observed that confiscatory proceedings stand concluded and parties could not file the appeal/revision within the statutory period of limitation, if they were to initiate such proceedings within next thirty days, the plea of limitation would not come in their way of adjudication of such proceedings on merit.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20121 Jayendra Mohan S o Lakshmi Sah R o Fatehpur Wala P.S. Tajpur District The State of Bihar through the Principal Secretary Registration Excise and Prohibition Department Government of Bihar Patna ... Petitioner s The District Magistrate cum Collector Gopalganj The Excise Commissioner Bihar Patna The Superintendent of Excise Gopalganj The Superintendent of Police Gopalganj ... Respondent s Mr.Satyendra Rai Advocate Mr.Kumar Manish S.C. 5 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 10 02 2021 learned counsel for the State Heard learned counsel for the petitioner and Petitioner has prayed for the following reliefs: No BR33AD7045 “For issuance of a writ in the nature of mandamus or any other appropriate writ writs order orders direction directions commanding the respondents to releases the Swift Dzire Maruti Car bearing Chassis No MA3CZF63SJE353358 and Engine No K12MN2211551 in favour of the petitioner which has been seized in connection with Gopalganj Excise Case No.199 2020 registered for the offence punishable under Section 30(a) of Bihar Prohibition and Excise Act 2016 and amendment Act 2018 on 16.08.2020 seized for the alleged Patna High Court CWJC No.20121 dt.10 02 2021 violation of Excise Act.” Learned counsel for the petitioner prays that the petition be disposed of in terms of order dated 9th January 2020 passed in CWJC No. 205919 titled as Md. Shaukat Ali Vs. The State of Bihar and subsequent order dated 14th January 2020 passed in CWJC No.171619 titled as Umesh Sah Versus the State of Bihar & Ors. and order dated 29.01.2020 passed in CWJC No.2050 of 2020 titled as Bunilal Sah objection to the same. Learned counsel for the respondents has no The Bihar Prohibition and Excise Act 2016 hereinafter referred to as the Act) prohibits the manufacture storage distribution transportation possession sale purchase and consumption of any intoxicant or liquor unless so allowed in terms of the Act.Any intoxicant liquor material still utensil implement apparatus in respect of or by means of which such offence has been committed b) any intoxicant or liquor unlawfully imported transported manufactured sold or brought along with or in addition to any intoxicant liable to confiscation under clausec) any receptacle package or covering in which anything liable to confiscation under clauseis found and the other contents if any of such receptacle package or covering d) any animal vehicle vessel or other conveyance used for carrying the same e) Any premises or part thereof that may have been used for storing or manufacturing any liquor or intoxicant or for committing any other offence under this Act Explanation. The word “premises” include the immovable structure all moveable items within the structure and the land on which the premises is Under section 58 power to issue an order of confiscation vests with the District Collector Authorized officer who upon receipt of the report of the seizing officer detaining such propertyis required to pass an order. Patna High Court CWJC No.20121 dt.10 02 2021 This Court has been flooded with several petitions solely on account of non initiation of such proceedings of confiscation or passing of illegal orders with respect thereto Also on account of lack of parties pursing the remedies so provided under the Act. Consequently the court was faced with the following fact situations: where despite seizure no proceedings for confiscation under Section 58 were initiated the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions did not participate in the confiscatory proceedings where the order of confiscation was neither communicated nor the parties made aware of such fact thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act proceedings initiated under Section 92 93 were not concluded within a reasonable time either on account of inaction on the part of the authority(s or on account of non cooperation of the private parties be it for passing several orders. Resultantly this Court from time to time has been Patna High Court CWJC No.20121 dt.10 02 2021 In CWJC No.3245 of 2017 titled as Manish Kumar Chaudhary versus the State of Bihar & Ors. this Court vide order dated 18.01.20202 issued following directions: “As such as mutually prayed for the present writ petition is being disposed of on the following mutually agreed terms: Interim order dated 07.03.2017 passed in the instant writ petition directing release of the propertyshall continue to remain in operation till such time proceedings up to the stage of initiation of confiscatory proceedings and its culmination as also filing and culmination of the proceedings in the appeal as the case may be. This however would be subject to the petitioner(s) fully cooperating and not transferring alienating the property to any person or creating third party rights. It goes without saying that the property shall be maintained and retained in its original condition and not destroyed in any manner or its character changed. b) Wherever proceedings for confiscation have not started the Appropriate Authority constituted under the Act shall positively initiate the same within a period of four weeks from today. In any event petitioner undertakes to appear in the office of the concerned concerned District Magistrate on the 10th of February 2020 and apprise him of the passing of the order. The said Officer shall forthwith and not later than four weeks from today initiate the proceedings and after compliance of principles of natural justice take a decision thereupon within a period of In the event of the authority arriving at the conclusion directing confiscation of the property the petitioner shall positively file Patna High Court CWJC No.20121 dt.10 02 2021 the appeal within the statutory period as envisaged under Section 92 of the Bihar Prohibition and Excise Act 2016 and the appellate authority shall positively decide the same within a period of two months Wherever confiscatory proceedings already stand concluded and if the petitioner so desires within four weeks from today or within the statutory period of limitation as the case may be positively file an appeal which shall be adjudicated on its own merit The issue of limitation shall not be raised by the State or come in the petitioner’s way of decision on merits. The said proceedings shall positively be concluded within a period of two months from the date of filing Petitioner undertakes to fully cooperate in all such proceedingsWhere appeal already stands filed petitioner shall appear before the said Authority on the 20th February 2020 and apprise him of the passing of the order. The Appellate Authority shall positively decide the same within a period of two months thereafter. g) With the decision in the appeal it shall be open for either of the parties to take recourse to such remedies as are available in accordance with law including approaching this Court on the same and subsequent cause of action. h) If the petitioner fails to cooperate does not or makes an endeavour of in any one of the proceedings referred to supra it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act with the interim order deemed to have been vacated If the appellant chooses not to prefer an appeal within the said statutory period or as Patna High Court CWJC No.20121 dt.10 02 2021 directed herein it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act and the interim order passed in the instant petition shall be deemed to have been j) With the outcome of the Special Leave PetitionNo.297416 titled as State of Bihar & Ors. etc. Vs. Confederation of Indian Alcoholic Beverage Companies Anr. parties including the petitioner would be at liberty to take recourse to such remedies as are permissible in law.” In CWJC No.20598 of 2019 titled as Md Shaukat Ali Vs. The State of Bihar & Ors. this Court vide order dated 09.01.2020 issued the following directions: “Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of Patna High Court CWJC No.20121 dt.10 02 2021 interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings.” These directions were reiterated in CWJC No.171619 titled as Umesh Sah Versus The State of Bihar & Ors. by this Court vide order dated 14.01.2020. Since the respondents had failed to comply with the several orders passed by this court in CWJC No.20520 titled as Bunilal Sah @ Munilal Sah versus the State of Bihar & Ors. vide order dated 29.01.2020 by recording the entire history directed the State to file an affidavit as to why proceedings for contempt be not initiated. Such order dated 29.01.2020 in toto reads as under: “It is seen that despite our order dated 9thof January 2020 passed in C.W.J.C. No. 20598 of 2019 Patna High Court CWJC No.20121 dt.10 02 2021 titled as Md. Shaukat Ali Vs. The State of Bihar& Ors. and the order dated 14thof January 2020 passed in C.W.J.C. No. 171619 titled as Umesh Sah Vs. The State of Bihar& Ors. the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court be it the trial court or the High Court is now choked solely on account of such legislation. In the High Court itself on an average 400 bail applications are being filed every day some of which are pertaining to the said Statute. Position in the lower courts is worse. Before the trial courts i.e. the Sessions Courts more than 1 75 000 challans stand filed in relation to the said Statute. Before this Court on an average more than 5000 writ petitions are being filed annually for release of vehicles properties seized under the said Act. It has been the continued practice of this Court since the year 2017 that in the writ petitions the vehicles unless the situation so warrants are normally being released subject to fulfilment of certain conditions. This perhaps is done only to protect the property from being destroyed for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute. Property is left to the vagaries of weather resulting into national loss. This we say for the reason that proceedings for confiscation as envisaged under Section 58 were never initiated by the authority which under the Act is the District Magistrate Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles properties are constrained to approach this Court for its release. When the matter in C.W.J.C. No. 205919and in 17165 of 2019(Umesh Sah Vs. The State of Bihar& Ors.)of the Bihar Prohibition and Excise Act 2016 It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in Patna High Court CWJC No.20121 dt.10 02 2021 CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar Ors. xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act apply his mind and pass a speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary issue further proceedings in the confiscation proceedings shall be prohibited. We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be Patna High Court CWJC No.20121 dt.10 02 2021 mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors. the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing Counsel 11 and Shri Vivek Prasad learned Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned Patna High Court CWJC No.20121 dt.10 02 2021 appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” C.W.J.C. No 171619 order dated 14.1.2020 bearing Registration No. BR 06G 4211 which has been seized in connection with Taukauliya P.S.Case No. 7018 for the offences punishable under Sections 272 273 34 of the Indian Penal Code and Sections 30(a) 38(1) 41(1)of the Bihar Prohibition and Excise Act 2016. It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. Patna High Court CWJC No.20121 dt.10 02 2021 viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act apply his mind and pass a Patna High Court CWJC No.20121 dt.10 02 2021 speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary issue further proceedings in the confiscation proceedings shall be prohibited. We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors.the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and Patna High Court CWJC No.20121 dt.10 02 2021 were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” and Shri Vivek Prasad Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing Counsel 11 learned Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered Patna High Court CWJC No.20121 dt.10 02 2021 long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 04.02.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes Patna High Court CWJC No.20121 dt.10 02 2021 to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” In Umesh Sahthis Court had clarified that the expression “reasonable delay” under Section 58 of Chapter 6 of the Act has to be construed to be ‘not more than three months’. It is seen that despite our observations the appropriate authorities have not taken any action in initiating the proceedings for confiscation of the property under the Act. The litigants are thus forced to approach this Court by way of filing separate petitions Thus today we are left with two options either to initiate proceedings for contempt under the provisions of Contempt of Courts Act or under Article 215 of the Constitution of India or ask the Chief Secretary Government of Bihar to evolve a mechanism self serving in nature so as to ensure that the provisions of the Act are implemented in letter and spirit expeditiously without any delay and with reasonable dispatch Why is it that the owners of the property are forced to approach this Court for release of the vehicles or property Is it that there is no mechanism under the Act for initiating confiscatory proceedings at the earliest Is it that there is insufficient infrastructure with the State Government for ensuring implementation of the provisions of the Act Illustratively in the weekly list dated 27.1.2020 we notice that more than 75 cases stand filed and listed despite our order dated 9thof January 2020. In the instant case seizure is of the year 2019 and no proceedings of confiscation have commenced We are of the considered view that non implementation of the Act is generally having a very serious adverse consequence on the dispensation of administration of justice. And peculiarly it is only when the matter was taken up by the Bench hearing the petition bearing C.W.J.C. No. 252619on 17.12.2019that the State vehemently opposed release of the vehicle contrary to the practice adopted hitherto before. Be that as it may at this point in time we refrain from passing any order under the contempt jurisdiction but direct the Chief Secretary Government of Bihar to file his personal affidavit dealing with each one of the issues highlighted as also elaborately Patna High Court CWJC No.20121 dt.10 02 2021 indicating the mechanism which the State has or desires to evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings be it confiscatory in nature or in an appellate jurisdiction under the provisions of the Bihar Prohibition and Excise Act Let an affidavit in that regard be positively filed within one week. List this case on 6.2.2020.” Further this very Bench in CWJC No.61420 titled as Vishal Kumar Versus the State of Bihar & Anr on 04.06.2020 issued the following directions: “In the aforesaid decisions we have already laid down the time schedule within which all proceedings are necessarily required to be concluded and the outer limit is three months from the date on which this Court has directed the party to make himself available before the appropriate We clarify that petitioner undertakes to fully cooperate in the proceedings and we further clarify that in case the authorities are not able to conclude the proceedings within the time bound period the vehicle property shall be allowed to be released on such conditions as the appropriate authority may deem fit and proper. As such petition is disposed of making the directions contained in the orders referred to supra applicable mutatis mutandis insofar as applicable and possible to the petitioner’s case.” Learned counsel states that petition be disposed of in terms of the various orders passed by this Court more so the orders referred to supra. It is seen that till date in large number of cases Patna High Court CWJC No.20121 dt.10 02 2021 position about conclusion of the proceedings be it under Section 58 92 or 93 remains the same. We further direct that all proceedings under Section 58 must positively be initiated concluded within a period of ninety days from the date of appearance of the parties Further Appeal Revision if any be also decided within a period of thirty days from the date of initiation failing which the “things”shall be deemed to have been released in terms of several orders passed by this Court reference whereof stands mentioned in Bunilal Sah @ Munilal Wherever confiscatory proceedings stand concluded and parties could not file the appeal revision within the statutory period of limitation as already stands directed in several matters if they were to initiate such proceedings within next thirty days the plea of limitation would not come in their way of adjudication of such proceedings on merit. Petitioner through learned counsel undertakes to make himself herself available on 03.03.2021 at 10:30 A.M before the appropriate authority which may be in the attending facts the Collector of the Gopalganj District Appellate or the Revisional Authority. If the Collector is not himself dealing with Patna High Court CWJC No.20121 dt.10 02 2021 the matter on account of delegation of power or assignment of work to another officer of his District he shall fix a date directing the parties to appear before the said officer which date shall be not exceeding one week. Also he shall inform the said authority of fixing of such date. We clarify that convenience of parties specially during the time of Pandemic Covid 19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology i.e. Video Conferencing facility etc. Learned counsel for the State undertakes to communicate the order to all concerned including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act for such order is available on the official website of the High Court & can be downloaded and or verified from there in the times of current Pandemic Covid 19. We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law within the time schedule fixed failing which the vehicle property things liable for confiscation shall be deemed to have been released without any further reference to this Court. Patna High Court CWJC No.20121 dt.10 02 2021 Liberty reserved to the petitioner to take recourse to such remedies as are otherwise available in accordance with law if the need so arises subsequently. Petition stands disposed of with the aforesaid Sanjay Karol CJ) ( S. Kumar J

Applying for bail under section 439 Cr.P.C. is not sufficient: Delhi High Court

The Delhi High Court was posed with the question of whether an application for a bail under Section 439 Cr.P.C. would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.P.C. if the condition stipulated therein were met in the matter of Subhash Bahadur @ Upender v The State (N.C.T. Of Delhi), [BAIL APPLN. 3141/2020]. In the present case, the petitioner and 2 others were accused of trying to snatch a mobile phone from the complainant and in the process shot the complainant in the leg. Out of the 3 accused, the petitioner and another accused refused to participate in the TIP and the one who did participate could not be successfully recognized by the complainant. All 3 of the accused were using a stolen motorcycle for carrying out this crime. The petitioner prayed for bail at the Trial Court which was rejected for the reason that the seriousness of the allegations of the crime committed by the accused do not justify the grant of bail. And the submission of the complainant not being influenced by the petitioner cannot be ruled out. The second bail application by the petitioner was also dismissed by the Trial Court. Therefore, the petitioner moved to the Delhi HC praying for bail. Counsel for the petitioner contended that there is no risk that the petitioner seeking bail would influence any witness; tamper any evidence or; flee from the law and that the petitioner has been falsely implicated without any material witness or evidence of his involvement in the offence. He further shed light on the petitioner being entitled to compulsory bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) but his applications for bail were rejected and the petitioner was not informed of his rights. The learned APP contended that application for bail.it is not sufficient that the petitioner had made and that the accused should have applied bail specifically mentioning the provisions of Section 167(2) of the Cr.P.C. and any application moved under Section 439 of the Cr.P.C. could not be construed as the accused availing of his indefeasible right to default bail. The bench of the Delhi HC consisting of Hon’ble Mr. Justice Vibhu Bakhru  held that, “In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 06th November 2020 BAIL APPLN. 3141 2020 SUBHASH BAHADUR @ UPENDER Through: Mr. Mohd. Perwez Advocate THE STATEbut his applications for bail were rejected and the petitioner was not informed of his rights Ms Chauhan learned APP countered the aforesaid contentions Mr Amit Gupta learned APP had also made submissions on behalf of the State on the question whether the petitioner was entitled to bail under Section 167(2) of the Cr.PC as he stated that the said question is also common to other petitions The FIR in questionwas registered at the instance of one Karamveeropened the door of his vehicle. One of the other boysis the petitioner herein attempted to snatch his mobile phone. The complainant stated that he resisted the same and pulled his mobile phone back. At that stage the boy was trying to snatch the phone and hetold his associatewere arrested in FIR No. 176 2018 under Sections 457 380 34 of the IPC. During the interrogation the said accused disclosed their involvement in the above incident. Thereafter they were also arrested in connection with the present casewhich was listed on 17.09.2020 On that date the learned counsel appearing for the petitioner withdrew the said application with liberty to approach the Trial Court as in the meantime the chargesheet had been filed on 14.09.2020 It is seen that the petitioner has been in custody for almost eleven months. No recoveries have been effected from him. Although it is alleged that he has made a disclosure statement admitting to be involved in the incident along with his two accomplices namely Satpal and Manoj the said disclosure statement appears to be of little value as admittedly the complainant did not identify Manoj as one of the boys who were involved in the incident 15. According to the IO who has joined the proceedings petitioner was riding the motorcycle and the two other accused were sitting behind him on the motorcycle. The petitioner was not the accused who had shot the complainant The investigation in this matter is complete. The principal witness is the complainant and there is little possibility of the appellant being able to influence him this stage is not necessary to evaluate the evidence coalesced by the investigating agency in any detail. However considering the facts in the present case this Court considers it apposite to allow the present petition BAIL APPLN. 31420 There is yet another aspect which requires consideration that is whether the petitioner was entitled to bail under the Provisoto Section 167(2) of the Cr.PC. The petitioner was arrested on 10.01.2020 and his detention in custody for a period of sixty days expired on 10.03.2020. Concededly the petitioner became entitled to a bail in default under the Provisoto Section 167(2) of the Cr.PCof the Cr.PC and any application moved under Section 439 of the Cr.PC could not be construed as the accused availing of his indefeasible right to default Thus the question that falls for the consideration of this Court is whether an application for a bail under Section 439 Cr.PC would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the BAIL APPLN. 31420 Cr.PC if the condition stipulated therein were met 21. At the outset it would be relevant to note the obligations of a court towards an under trial prisoner who is entitled to be released on default bail in terms of Provisoto Section 167(2) of the Cr.PC In Hussainara Khatoon and Ors. v. Home Secretary State of Bihar Patna:1 SCC 108 the Supreme Court had considered affidavits filed by the Superintendent of the Patna Central Jail Superintendent of Muzaffarpur Jail and the Superintendent of the Ranchi Central Jail which indicated towards prisoners who were confined in the said jails and who had been produced before Magistrates from time to time in compliance with the requirement of the Provisoof the Cr.PC. In the said context the Supreme Court had observed as under: It is apparent from these charts that some of the petitioners and other undertrial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these undertrial prisoners were produced the Magistrates and the Magistrates made orders of remand they must have applied their mind to the necessity of remanding those undertrial prisoners to judicial custody. We are also very doubtful whether on the expiry of 90 days or 60 days as the case may be from the date of arrest the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under provisoof sub sectionof Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days as the case may be the Magistrate must before making BAIL APPLN. 31420 an order of further remand to judicial custody point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enabling him to apply for bail in exercise of his right under provisoof Section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated February 12 1979. We hope and trust that every Magistrate in the country and every State Government will act accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrates and we have no doubt that if this is strictly carried out there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law.” underlined for emphasis In Rakesh Kumar Paul v. State of Assam:15 SCC 67 the Supreme Court further held that it would be the responsibility of a court to at least apprise the accused of his or her indefeasible right for default bail. Paragraph nos. 43 and 44 of the said judgment are relevant and are set out below: “43. This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right. In Khatriv. State of Biharv. State of Bihar 1 SCC 627 : 1981 SCC228 the Judicial Magistrate did not provide legal representation to the accused since they did not ask for it. It was held by this Court that this was unacceptable and that the Magistrate or the Sessions Judge before whom an accused appears must be BAIL APPLN. 31420 held under an obligation to inform the accused of his or her entitlement to obtain free legal assistance at the cost of the In Suk Das v. UT of Arunachal Pradesh2 SCC 401 : 1986 SCC166] the accused was tried and convicted without legal representation due to his poverty. He had not applied for legal representation but notwithstanding this this Court held that the trial was vitiated and the sentence awarded was set aside particularly since the accused was not informed of his entitlement to free legal assistance nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo v. State of M.P.8 SCC 553 :3 SCC984] the High Court dismissedthe appeal of the accused without enquiring whether he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatriv. State of Bihar 1 SCC 627 : 1981 SCC228] and Suk Das2 SCC 401 : 1986 SCC166] this Court remanded his appeal to the High Court for rehearing after giving an opportunity to the accused to take legal assistance. Finally in Mohd. Ajmal Amir Kasab v. State of Maharashtra9 SCC 1 :3 relied on Khatri481 2) v. State of Bihar 1 SCC 627 : 1981 SCC228 and held in para 474 of the Report as follows:9 SCC 1 :3 SCC481] SCC p. 186 “474. … it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and in case he has no means to engage a lawyer of his choice that one would be provided to him from legal aid at the expense of the State. The right flows BAIL APPLN. 31420 from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We accordingly direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings.” 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to “default bail” to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above and also adverted to in Nirala Yadav9 SCC 457 2014) 5 SCC212]” underlined for emphasis In Arvind Kumar Saxena v. State:250 DLT 130 a coordinate Bench of this Court following the observations made by the Supreme Court in paragraph no. 44 of its decision in Rakesh Kumar Paulissued directions to the Registrar General of this Court to explore the possibility of creating a database and software for the District Courts of Delhi in order to provide ready access to data in relation to remand applications during the course of investigation pending before the trial courts including dates of arrest the dates on which the requisite chargesheets are to be filed in terms of Section 167(2) of Cr.PC and the dates on which the chargesheets have been filed. The Court had observed that this would assist the trial courts in BAIL APPLN. 31420 preservation of personal liberties of the accused appearing before them by informing the accused of their entitlement to a default bail under the Provisoto Section 167(2) of the Cr.PC In Rakesh Kumar Paulthe right to apply for default bail in terms of provisoto Section 167(2) of the Cr.PC had accrued to the accusedon 04.01.2017. The chargesheet in that case was filed on 24.01.2017 and on that date his right to secure a default bail stood extinguished. The petitioner had applied for a regular bail on 11.01.2017 before the Gauhati High Court but he had not made any specific application for default bail. The Court noted that in that case the accused had mentioned that the statutory period for filing the chargesheet had expired and he had also argued the issue orally However the same was not accepted In the aforesaid context the Supreme Court held that the petitioner had made an application for default bail if not in writing then orally. The Court further observed as liberty. Consequently whether “40. ….. In our opinion in matters of personal liberty we cannot and should not be too technical and must lean in favour of personal accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence. The court concerned must deal with such an application by considering the statutory requirements namely whether the statutory period for filing a charge sheet or challan has expired whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail BAIL APPLN. 31420 41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court 42. In Sunil Batrav. State[Sunil Batra 2) v. State(1980) 3 SCC 488 : 1980 SCC Cri) 777] this Court accepted a letter which was treated as petition written by a prisoner Jail Delhi complaining of inhuman torture inflicted on another prisoner by the Jail Warder. In Hussainara Khatoonv. State of Biharv. State of Bihar 1 SCC 98 : 1980 SCC40] a number of writ petitions some by way of a letter were grouped together and treated as habeas corpus petitions. In Rubabbuddin Sheikhv. State of Gujaratv. State of Gujarat 2007) 4 SCC 318 :2 SCC290] the brother of the deceased wrote a letter to the Chief Justice of India disappearance of his sister in law. This was treated as a Dev v. State Dev v. State of Rajasthan 1 SCC 503 : 1981 SCC Cri) 191] the petitioners sent a telegram to a learned Judge this Court complaining of solitary confinement of prisoners. The telegram was treated as a habeas corpus petition and the persons concerned were directed to be Kaur v. State of Punjab7 SCC 20 : 1996 SCC167] a telegram received at the residential office of a learned Judge of this Court alleging an incident of kidnapping by the police was treated In Bandhua Mukti Morcha v. Union of India3 SCC 161 : 1984 SCC389] a petition BAIL APPLN. 31420 addressed to a learned Judge of this Court relating to the inhumane and intolerable conditions of stone quarry workers in many States and how many of them were bonded labour was treated as a writ petition on the view that the “Constitution makers deliberately did not down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straitjacket formula”.3 SCC 235 : 1982 SCC275 : AIR 1982 SC 1473] a letter addressed to a learned Judge of this Court concerning violation of various construction projects connected to the Asian Games was treated as a writ petition. In Upendra Baxiv. State of U.P.v. State of U.P. 2 SCC 308 1983 SCC430] a letter relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra2 SCC 96 : 1983 SCC Cri) 353] a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty jurisprudence of this Court and in matters pertaining to Article 21 of the Constitution of India this Court has consistently taken the view that it is not advisable to be ritualistic and formal. However we must make it clear that we should not be understood to suggest that procedures must always be given a go by — that is certainly not our intention.” underlined for emphasis In Arvind Kumar Saxenathe accused was arrested by the Crime Branch on 03.06.2017 and he was placed in judicial custody BAIL APPLN. 31420 The statutory period of sixty days from the date of arrest expired on 04.08.2017. Thereafter on 19.09.2017 he filed an application for bail under Section 439 of the Cr.PC. The said application was fixed for hearing on 26.09.2017. The chargesheet in that case was filed on 20.09.2017. Thereafter on 21.09.2017 the applicant filed another application seeking bail under Provisoto Section 167(2) of the Cr.PC which was rejected because prior to the said application the investigation agency had filed the chargesheet. However the petitioner had preferred an application for bail under Section 439 of the Cr.PC prior to filing of the chargesheet and after a period of sixty days from the date of his arrest had expired. In this context this Court observed as “The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation indicating thereby that the investigation was not complete and did not the charge sheet on set completed till submission of 20.09.2017 cannot be overlooked and thus extinguish the indefeasible right of “default bail” to the The Supreme Court in a recent decision in M. Ravindran v. The Intelligence Officer Directorate of Revenue Intelligence: Crl. A 699 2020 decided on 26.10.2020 explained the provision of Section 167(2) of the Cr.PC in the context of Article 21 of the Constitution of India and held that “the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person BAIL APPLN. 31420 shall be detained except in accordance with rule of law”. The Supreme Court noted the legislative history of Section 167 of the Cr.PC and the rationale for its amendment. The relevant extract of the said decision setting out the legislative history of Section 167 of the Cr.PC and the rationale for its enactment as set out in the said decision is relevant and the Code of Criminal “11.2 Under Section 167 of Procedure 1898which was in force prior to the enactment of the CrPC the maximum period for which an accused could be remanded to custody either police or judicial was 15 days. However since it was often unworkable to conclude complicated investigations within 15 days a practice arose wherein investigative officers would file ‘preliminary chargesheets’ after the expiry of the remand period. The State would then request the magistrate to postpone commencement of the trial and authorize further remand of the accused under Section 344 of the1898 Code till the time the investigation was completed and the final chargesheet was filed. The Law Commission of India in Report No. 14 on Reforms of Administrationpointed out that in many cases the accused were languishing for several months in custody without any final report being filed before the Courts. It was also pointed out that there was conflict in judicial opinion as to whether the magistrate was bound to release the accused if the police report was not filed within 15 days. Hence the Law Commission in Report No. 14 recommended the need for an appropriate provision specifically providing for continued remand after the expiry of 15 days in a manner that “while meeting the needs of a full and proper investigation in cases of serious crime will still safeguard the liberty of the person of the individual.” Further that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the BAIL APPLN. 31420 magistrate. It was pointed out that in England even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the 11.3 The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure 1898an accused person should get a fair trial accordance with the accepted principles of natural ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society and iii) the procedure should not be complicated and should to the utmost extent possible ensure fair deal to the poorer sections of the community.” 11.5 It was in this backdrop that Section 167(2) was enacted within the present day CrPC providing for time limits on the period of remand of the accused proportionate to the seriousness of the offence committed failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence so that society at large does not lose faith and develop cynicism towards the criminal justice 11.6 Therefore as mentioned supra Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention and must be interpreted in a manner which serves this purpose In S. Kasi v. State Through The Inspector of Police BAIL APPLN. 31420 Samaynallur Police Station Madurai District: Crl. A. 452 2020 decided on 19.06.2020 the Supreme Court set aside the order of the Madurai Bench of the Madras High Court holding that the order dated 23.03.2020 passed by the Supreme Court in Suo Moto W.P.No. 20 extending the period of limitation in wake of the outbreak of COVID 19 which also eclipsed the time prescribed for completion of investigation. The Supreme Court held that its order dated 23.03.2020 could not be held to have eclipsed the time prescribed for completion of investigation under Section 167of the Cr.P.C. nor the restrictions which have been imposed by the Government during the lockdown could operate as any restriction on the rights of an accused person as protected under Section 167of the Cr.PC regarding his indefeasible right to get a default bail on non submission of a chargesheet within the time period prescribed. It is important to note that the Supreme Court founded its decision on the inalienable right to life and liberty which has been recognised under Article 21 of the Constitution of India. The Supreme Court also referred to paragraph no. 136 of the decision of the Supreme Court in K. S. Puttaswamy and another v. Union of India and others:10 SCC 1 wherein D.Y. Chandrachud. J speaking for the court had formally overruled the decision in Additional District Magistrate Jabalpur v. Shivakant Shukla:2 SCC 521 as under the four Judges “136. The judgments rendered by all Jabalpur2 SCC 521 : AIR 1976 SC 1207] are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are in Kesavananda Bharati4 SCC 225] primordial rights. They constitute rights under Natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Khanna J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona namely life liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of Law which imposes restraints upon the powers vested in the modern State when it deals with the liberties of the individual. The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the Rule of Law.” In Bikramjt Singh v. State of Punjab: Crl. A. No. 6620 decided on 12.10.2020 the Supreme Court observed as under “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail as has been correctly held by the judgments of this Court are not mere statutory BAIL APPLN. 31420 rights under the first proviso to Section 167(2) of the Code but is part of the procedure established by law under Article 21 of the Constitution of India which is therefore a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.” It is important to bear the aforesaid principles enunciated by the Supreme Court in the aforementioned decision while addressing the controversy as to whether the petitioner was entitled for default bail 31. At this stage it would be relevant to refer to Sub sectionof Section 167 of the Cr.PC. The same is set out below “167. Procedure when investigation cannot be completed in twenty four hours. — 2) The Magistrate to whom an accused person is forwarded this section may whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding — i) ninety days where the investigation relates to an offence imprisonment for a term of not less than ten years BAIL APPLN. 31420 sixty days where the investigation relates to any other offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video c) no Magistrate of the second class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police.” 32. A plain reading of the Provisoto Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail “if he is prepared to and does furnish bail”. Thus in cases where the statutory period of sixty days or ninety days has expired the accused would be entitled to be released on bail provided he meets the condition as set out therein that is he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of lawSupp SCR 137 and Union of India vs Thamsharasi:4 BAIL APPLN. 31420 SCC 190]. As is apparent from the language of Provisoto Section 167(2) of the Cr.PC the power of a Court to remand an accused to custody pending investigation is circumscribed and stands denuded if the period of sixty days or ninety days as the case may be has expired and the accused is ready and willing to furnish bail It is also necessary to bear in mind that courts have consistently leaned to resolve the tension between form and substance in favour of substance and have used the interpretative tools to address the substance of the matter. In Ajay Hasia Etc v Khalid Mujib Sehravardi Ors:1981SCR(2) 79 had in an altogether different context observed that “where the constitution fundamentals vital to maintenance of human rights are at stake functional realism and not facial cosmetics must be the diagnostic tool for constitutional law must seek the substance and not the form”. Thus if in substance the essential conditions as set out under the Provisoto Section 167(2) of the Cr.PC are met and complied with that isif the investigation has not been completed within the period of sixty or ninety days as the case may be from the date of arrest of the accused andif the accused is prepared to offer bail then there would be no justifiable reason to detain the accused 35. As noticed above the petitioner had unequivocally stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required. Clearly the Proviso BAIL APPLN. 31420 to Section 167(2)(a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail. Of course he would be released on bail only if he did so The Supreme Court in the case of Uday Mohanlal Acharya v State of Maharashtra:5 SCC 453 had observed as under “13. …. In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail.” In the present case there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in 38. Mr Amit Gupta the learned APP had also referred to the decision of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra:4 SCC 602 and had drawn the attention of this Court to paragraph no. 21 of the said decision. He contended that a court cannot release an accused on bail on its own motion without any application on his behalf and it would be necessary for the accused to make an application to be released on bail on account of default on the part of the investigation agency. It was submitted that since no such application had been made the petitioner could not have been released BAIL APPLN. 31420 on default bail. The relevant extract of paragraph no. 21 of the said decision referred to by Mr Gupta is set out below “21…. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating prosecuting agency and once such an application is made the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clauseor that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of ‘default’. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings It would therefore serve the ends of justice if both sides are heard on a petition for grant of bail on account of prosecution s ‘default’....” The two principles that emerge from the above ruling in Hitendra Vishnu Thakurare thatthe Court cannot release an accused on bail on its own motion without any application from the accused offering to furnish bail andthat the investigating prosecuting agency must be put to notice There is no dispute that an accused cannot be released on bail by BAIL APPLN. 31420 a court on its own motion and it is necessary for the accused to apply and offer to furnish bail. As noticed above the language of Provisoof the Cr.PC also requires an accused to indicate that he is prepared to furnish bail before he can be released on bail. In substance the said condition is met. In Rakesh Kumar Paulthe Supreme Court had noted that there may be rare cases where the accused may not be wanted to be released on bail on account of concerns of personal safety or for other reasons. It is also in this context that the accused must apply for bail. Thus there is no controversy that it is necessary that the accused offers to furnish bail in order to avail of his right to default bail. If the accused offers to furnish bail he would comply with the condition as set out in provisoto section 167(2 Cr.PC. In this case the said condition has been met. Undisputedly the petitioner had made an application albeit under Section 439 of the Cr PC offering to furnish bail. In view of the decision in Rakesh Kumar Pauleven an oral plea for default bail is compliant with the proviso(a) to Section 167(2) Cr.PC. Thus it would be apposite to consider an application for bail filed on expiry of stipulated period of filing chargesheet as an application for bail under the provisio to Section 167since it does indicate that the accused is prepared to furnish bail The second requirement is that the prosecution agency must be put to notice of the ground on which the bail is being granted in order for the prosecution agency to point out if there is any reasons why the accused is not entitled to such bail. By virtue of certain special acts BAIL APPLN. 31420 such as the Unlawful ActivitiesAct 1967 and the Narcotic Drugs and Psychotropic Substances Act 1985 certain provisions of the Cr.PC including Section 167 of the Cr.PC stand amended in regard to application to offences under the said statutes. In cases pertaining to these enactments the court is expressly empowered to extend the period for completion of investigation and if an application for the same is pending the investigating prosecuting agency can also point out the same as the decision in that application would have a bearing on the question whether an accused can be released on bail 42. As explained by the Supreme Court in a number of decisions the Proviso to Section 167(2) of the Cr.PC is intrinsically linked to the right under Article 21 of the Constitution of India that “no person shall be deprived of his life or personal liberty except according to the procedure established by law” It embodies a safeguard that circumscribes the power to detain an accused pending investigation Keeping this principle in mind and the consistent view of the Supreme Court that in matters of personal liberties it would not be apposite to curtail the same on technicalities this Court is of this view that the petitioner would be entitled to default bail. This is also considering the fact that the petitioner had indicated in unequivocal terms that he desires to be released on bail and he is ready to furnish surety for the same In view of the above this Court considers it apposite to allow the The petitioner is directed to be released on bail on his furnishing BAIL APPLN. 31420 a personal bond in the sum of ₹10 000 with one surety of an equivalent to the satisfaction of the concerned Trial Court Duty Magistrate. This is also subject to following further conditions a) the petitioner shall provide a mobile number to the concerned SHO IO and ensure that he is reachable at all b) the petitioner shall not leave the National Capital Territory of Delhi without prior intimation to the SHO IO and without informing him the address of his destination c) the petitioner shall mark his presence before the Duty Officeron the first Monday of each calendar month and the petitioner shall not contact the victim his family members or any of the witnesses The petition is allowed in the aforesaid terms NOVEMBER 06 2020 VIBHU BAKHRU J BAIL APPLN. 31420 Page 2

There is a total lethargic and negligence on the part of the State and its departments in not issuing the fresh tender process and in not issuing fresh NIT after 2018: Supreme Court of India

It is very unfortunate that the contract for supply/transportation of rice and other micronutrients under the Development Scheme has been continued by way of an interim arrangement only and without issuing any fresh tenders and the contract has been continued at the old rates of 2017-18, which must have caused tremendous/huge loss to the State and the Public Exchequer. The aforesaid has been upheld by the Supreme Court of India while adjudicating the case of M/s B.K. Enterprises v. The State of Manipur and Another [ CIVIL APPEAL NO. 6532 OF 2021] which was decided upon by a single judge bench comprising Justice M.R. Shah on 12th November 2021. The facts of the case are as follows. That the State of Manipur through the Director of Social Welfare Department, Government of Manipur issued a NIT for 2 transporting Rice & other micronutrients under the Wheat Based Nutrition Programme (WBNP), from Food Corporation of India’s depots in the State of Manipur, to the offices of Child Development Project Officers. That the State’s Higher Tender Committee in its meeting, recommended that the acceptable band of rate was Rs.6.265 – Rs.11,635 per MT per KM and further recommended that Route No.8 be awarded to one RK & Co. and that fresh tender should be conducted for the other routes. That respondent no.2 awarded contracts for all the routes to one RK & Co. by way of interim arrangement till the finalization of the re-tender process. That the appellant herein filed a writ petition before the High seeking award of tender with respect to route nos. 1,3,5 & 9 alleging inter alia that being the lowest bidder as per Higher Tender Committee’s band rate, it should be awarded the contract with respect to route nos. 1,3,5 & 9. During the pendency of the aforesaid writ petition, respondent no.2 – Director, Social Welfare Department cancelled the Higher Tender Committee’s proceedings and recommendations. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Manipur at Imphal, by which the Division Bench of the High Court has disposed of the said writ appeal. The court perused the facts and arguments presented. it was of the opinion that “ we dispose of the present appeal by directing the respondents – State of Manipur and the concerned Department including respondent no.2 to issue fresh NIT for appointment of transport contractor under Supplementary Nutrition Programme (SNP), within a period of 10(ten) days from today and it is directed that the fresh NIT is conducted in a fair and transparent manner through e-Tender and invitation of the fresh NIT shall be nation-wide and it is the duty of the State/concerned Department to see that there is no cartel by the contractors and that the maximum price is received and there is no loss to the Public Exchequer and the State. The entire tender process be 7 completed within a period of six weeks from the date of issuance of the e-Tender. In the peculiar facts and circumstances of the case and only with a view to see that there is no inconvenience caused to the beneficiaries, the directions issued by the High Court relating to transportation of goods under Supplementary Nutrition Programme (SNP) in the impugned order/interim order dated 19.12.2018 is directed to be continued till 31.12.2021. The State of Manipur is directed to submit a compliance report before this Court. Any lapse on the part of the State and/or its departments and non-compliance of the present order shall be viewed very seriously”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6532 OF 2021 M s B.K. Enterprises …Appellant The State of Manipur and Another JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Manipur at Imphal dated 04.11.2020 in Writ Appeal No. 28 2018 by which the Division Bench of the High Court has disposed of the said writ appeal with the following The State Government and in particular the Social Welfare Department shall take up immediate steps and issue fresh NIT for transportation of food grains and Micronutrients under the WBNP within a period of 10(ten) days from the date of receipt of a copy of this judgment and order The whole tender process including the issuance of work order should be completed within 20(twenty) days from the date of issue of fresh NIT and Till the completion of the tender process and issuance of the work orders the present arrangement for transportation of food grains under the WBNP pursuant to the interim order of this Court dated 19.2.2018 shall continue M s B.K. Enterprises has preferred the present appeal 2. We have heard Shri Siddhartha Dave learned Senior Advocate appearing on behalf of the appellant and Shri Pukhrambam Ramesh Kumar learned Advocate appearing for the respondents 2.1 At the outset it is required to be noted that this is a glaring example of lethargy on the part of the State Government in not inviting the fresh tenders for transporting Rice & other micronutrients under the Wheat Based Nutrition Programmefrom Food Corporation of India’s depots in the State of Manipur to the offices of Child Development Project Officers and to continue the contract without inviting fresh tenders on the basis of the Notice Inviting Tender from Food Corporation of India’s depots in the State of Manipur to the offices of Child Development Project Officers That the State’s Higher Tender Committee in its meeting dated 16.12.2017 recommended that the acceptable band of rate was Rs.6.265 Rs.11 635 per MT per KM and further recommended that Route No.8 be awarded to one RK & Co. and that fresh tender should be conducted for the other routes. That respondent no.2 awarded contracts for all the routes to one RK & Co. by way of interim arrangement till the finalization of the re tender process. That the appellant herein filed a writ petition before the High Court being Writ Petition No. 63 2018 seeking award of tender with respect to route nos. 1 3 5 & 9 alleging inter alia that being the lowest bidder as per Higher Tender Committee’s band rate it should be awarded the contract with respect to route nos. 1 3 5 9. During the pendency of the aforesaid writ petition respondent no.2 Director Social Welfare Department vide order dated 30.04.2018 cancelled the Higher Tender Committee’s proceedings and recommendations dated 16.12.2017 3.1 That the High Court vide order dated 20.06.2018 disposed of the aforesaid writ petition with the directions to the respondents to constitute a High Power Committee to proceed with the tender process afresh from the stage where and after the technical and financial bids opened by the State Director Social Welfare Department and it should be completed on or before 21.07.2018 3.2 The appellant herein filed Writ Appeal No. 28 2018 before the Division Bench of the High Court. Vide interim order dated 19.12.2018 the Division Bench of the High Court directed for equal distribution of the available WBNP rice amongst three contractors namely RK & Co. BLL Enterprises and BLL Agency as a temporary arrangement of all nine routes. The State entered into temporary distribution agreements with the aforementioned bidders. By the impugned judgment and order the High Court has disposed of writ appeal no. 28 2018 with the following The State Government and in particular the Social Welfare Department shall take up immediate steps and issue fresh NIT for transportation of food grains and Micronutrients under the WBNP within a period of 10(ten) days from the date of receipt of a copy of this judgment and order The whole tender process including the issuance of work order should be completed within 20(twenty) days from the date of issue of fresh NIT and Till the completion of the tender process and issuance of the work orders the present arrangement for transportation of food grains under the WBNP pursuant to the interim order of this Court dated 19.2.2018 shall continue From the aforesaid it can be seen that since 2017 18 the contract for transportation of the rice and other micronutrients under the WBNP to the offices of Child Development Project Officers has been continued solely on the basis of the interim arrangement and without inviting fresh tenders and without entering into any permanent contracts. To continue with the contracts for transportation of rice and other micronutrients within the State without any fresh tenders and by way of an interim arrangement only and at the rates which were prevailing in the year 2017 18 has caused tremendous huge loss to the State and the Public Exchequer. Even after the impugned order is passed by the High Court which has been passed on 04.11.2020 by which the Division Bench of the High Court has directed to take immediate steps and issue fresh NIT for transportation of food grains and micronutrients under the WBNP within a period of 10 days from the date of receipt of the judgment and order and has further directed that the whole tender process including issuance of work orders should be completed within 20 days from the date of fresh NIT no steps have been taken till date and the contract has been continued which was by way of an interim arrangement only pursuant to interim order dated 19.12.2018 causing further loss to the State. The action on the part of the State Government and the Social Welfare Department of the State of Manipur is highly deprecated Contracts cannot be continued without finalizing of the tender process and or without issuing fresh tenders and or without undertaking the fresh tender process and by way of an interim arrangement only and that too at the rates prevailing in the year 2017 18. It appears prima facie that everybody is happy namely the officers of the State Government more particularly the officers of the Social Welfare Department and the Contractors and it appears that the State is not interested in issuing fresh Learned counsel appearing on behalf of the State of Manipur has stated at the Bar that now the State concerned department has taken a decision for appointment of Transport Contractor under the Supplementary Nutrition Programme and State Department is ready to float the tender within 10 days. It is submitted that the entire process is likely to take about two months as the opening of the financial bids and the verification of the technical bids will take some time. Therefore it is prayed to grant some reasonable time to the State concerned Department for completing the tender process. It is stated that the State Department undertakes to conduct fresh NIT in a fair and transparent manner through e Tender. It is submitted on behalf of the State that the State Department has not been able to implement the order passed by the Division Bench of the High Court dated 04.11.2020 in Writ Appeal No. 28 2018 because of the administrative difficulties and the State Department tenders its unconditional apology for the same. The aforesaid is a vague explanation which is not accepted. It is very unfortunate that the contract for supply transportation of rice and other micronutrients under the Development Scheme has been continued by way of an interim arrangement only and without issuing any fresh tenders and the contract has been continued at the old rates of 2017 18 which must have caused tremendous huge loss to the State and the Public Exchequer. There is a total lethargic and negligence on the part of the State and its departments in not issuing the fresh tender process and in not issuing fresh NIT after 2018 In view of the above we dispose of the present appeal by directing the respondents State of Manipur and the concerned Department including respondent no.2 to issue fresh NIT for appointment of transport contractor under Supplementary Nutrition Programme within a period of 10(ten) days from today and it is directed that the fresh NIT is conducted in a fair and transparent manner through e Tender and invitation of the fresh NIT shall be nation wide and it is the duty of the State concerned Department to see that there is no cartel by the contractors and that the maximum price is received and there is no loss to the Public Exchequer and the State. The entire tender process be completed within a period of six weeks from the date of issuance of the e Tender. In the peculiar facts and circumstances of the case and only with a view to see that there is no inconvenience caused to the beneficiaries the directions issued by the High Court relating to transportation of goods under Supplementary Nutrition Programme SNP) in the impugned order interim order dated 19.12.2018 is directed to be continued till 31.12.2021. The State of Manipur is directed to submit a compliance report before this Court. Any lapse on the part of the State and or its departments and non compliance of the present order shall be viewed very seriously 7. With the aforesaid directions the present appeal stands disposed of. Pending applications if any also stand disposed of NEW DELHI NOVEMBER 12 2021

Not a case of replacement of ad hoc by ad hoc, appellants period of contractual engagement ended, hence no illegality in discontinuing their services: Gujarat High Court

The question is as to whether the work exists for which services would be required or not would be a question of fact and can be only decided by leading evidence by the parties. Such disputed question or issue cannot be decided under Article 226 of the Constitution. This was said in the case of Patel Savan Bharatbhai vs State Of Gujarat [C/LPA/776/2020] by Mr. Justice Nath, Ashutosh J. Shastri in the High Court of Gujarat. The facts of the case are that present appellants were appointed on contractual basis for a period of 11 months on non-teaching post on completely ad hoc / temporary basis against an advertisement. Thereafter, they were given a further appointment for a fixed period against fixed salary of Rs.13,200/. The University took a decision to fill up the ad hoc / temporary contractual non-teaching posts through outsourcing. This would result into discontinuance of the appellants. The learned Single Judge vide judgment dated 08.10.2020 dismissed the writ petitions filed by the appellants challenging the decision of the University. Aggrieved by the said judgment of the learned Single Judge dated 08.10.2020 the present appeals have been filed. The appellants contended that the University is deliberately not appointing regular staff and continuing with contractual employees and exploiting them time and again for vested reasons. It was also contended that the appellants have been appointed after following selection procedure against an open advertisement, and therefore, discontinuing them from service is contrary to public policy and amounts to clear exploitation under Articles 14 and 16 of the Constitution of India. On the other hand, the respondents contended that the challenge by way of the Civil Applications to the advertisement inviting e-tenders to engage an outsourcing agency is beyond the scope of these appeals. Secondly, appellants’ appointment being contractual in nature they had no right to challenge the said tender and even if they have any right the same would be a separate cause of action and cannot form part of these appeals. The work for which the appellants were engaged no longer existed as such their engagements were not continued any further. Rejecting the contentions of the appellants, the Court opined that “This is not a case of replacement of temporary ad hoc employees by another set of ad hoc or temporary employees. The appellants were engaged on contractual basis and their period of engagement having come to an end there is no illegality in discontinuing their services. If the appellants were engaged for a specific work and their requirement was for a fixed period and if the same is disputed, apparently such disputed facts cannot be resolved under writ jurisdiction”. Furthermore, the Court said that “the specific stand of the University is that the work which was being performed by the appellants was no longer required by the University to be continued and as such there was no question of any replacement of the present appellants by the University through an outsourcing agency for carrying the work which they were doing. The requirement of the University is for other posts, but not for the work which was being carried out by the appellants”. Hence, the appeals lack merit and they are dismissed.

on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR LETTERS PATENT APPEAL NO. 7720In R SPECIAL CIVIL APPLICATION NO. 65220With CIVIL APPLICATIONNO. 20 In R LETTERS PATENT APPEAL NO. 7720With CIVIL APPLICATIONNO. 21 In R LETTERS PATENT APPEAL NO. 7720With R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820With CIVIL APPLICATIONNO. 21 In R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820With CIVIL APPLICATIONNO. 20 In R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH andHONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment Yes2 To be referred to the Reporter or not Yes3 Whether their Lordships wish to see the fair copy of the judgment No4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder No==========================================================PATEL SAVAN BHARATBHAI VersusSTATE OF GUJARAT ==========================================================Page 1 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTAppearance:MR IH SYED SENIOR ADVOCATE with MR MEET A SHAH for the Appellant(s) No. for the RESPONDENT(s) No. MR MITUL SHELAT ADVOCATE for MS DISHA N NANAVATY for the Respondent(s) No. ==========================================================CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATHandHONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 27 04 2021 CAV JUDGMENT 4 SCC 118.[ii]Kanubhai Karshanbhai Bhava vs. State of Gujarat & Ors.1741 2014 C.M. No.3645 2014].Page 8 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT[viii]Pradeep Navinbhai Patel & Ors. vs. State of Gujarat3 SCC 291.9.4It is next submitted that the action of the University in discontinuing the present appellants is malafide and is actually exploitation. The University is deliberately not appointing regular staff and continuing with contractual employees and exploiting them time and again for vested reasons. On this point reliance is placed on the following judgments:[i]C M Lala Babu Baijal Memorial Inter College & Anr. vs. State of U.P. & Anr.4 SCC 118.9.5It is lastly submitted that the appellants have been appointed after following selection procedure against an open advertisement and therefore discontinuing them from service by treating them to be contractual employees is contrary to public policy and amounts to clear exploitation. The hire and fire policy of the University is in violation of Articles 14 and 16 of the Constitution of India. Reliance has been placed upon the decision of the Apex Court in the case of State of Punjab vs. Jagjit Singh & Ors. Reported in1 SCC 248. 10Mr. Mitul Shelat learned counsel for the respondent University submitted that the judgment of the Page 11 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTlearned Single Judge does not suffer from any infirmity. According to him the scope of the present appeals is only to test the correctness of the judgment of the learned Single Judge based upon the material which was available before him. It is further submitted that the challenge by way of the Civil Applications to the advertisement inviting e tenders to engage an outsourcing agency is beyond the scope of these appeals. It is further submitted that the appellants’ appointment being contractual in nature they had no right to challenge the said tender and even if they have any right the same would be a separate cause of action and cannot form part of these appeals. 10.1Mr. Shelat very emphatically submitted that the work for which the appellants were engaged no longer existed as such their engagements were not continued any further. According to him it is not a case of replacement of ad hoc temporary contractual by another set of ad hoc temporary contractual employees. It is a clear case of not required. The submission to the contrary according to Mr. Shelat is misconceived and is being misrepresented.Page 12 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT10.2Mr. Shelat further submitted that the findings of the learned Single Judge being pure finding of facts the same could not be looked into these appeals and the appeals deserve to be dismissed.10.3It is also submitted that the appellants if aggrieved by their discontinuance being illegal they may agitate the same before appropriate forum by drawing appropriate proceedings. 10.4It is also submitted by Mr. Shelat that the standard of review to be applied in intra court appeal is well settled in a number of judgments of the Supreme Court and the High Courts. It would not be proper for appellate court to substitute its views with the views of the learned Single Judge merely because another view or better view is possible unless the finding of the Single Judge is perverse.10.5It is next submitted that the appellants are contractual employees and a contractual employee has no right to continue in contractual employment. It is further submitted that a writ petition seeking such relief is not maintainable.Page 13 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT10.6Mr. Shelat has relied upon the following decisions in support of his submissions:[i]Management of Narendra & Company Private Limited vs. Workmen of Narendra & Company reported in[iii]Uttar Pradesh Cooperative Spinning Mills Federation Limited & Ors. Vs. Amar Nath Dwivedi and Anr. Reported in16 SCC 451.[iv]Yogesh Mahajan vs. Professor R.C.Deka Director All India Institute of Medical Sciences reported in3 SCC 218.[v]Rajasthan State Roadways Transport Corporation vs. Paramjeet Singh reported in6 SCC 250.Page 14 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT[vi]Sunil Kumar Biswas vs. Ordnance Factory Board and Ors. Reported in15 SCC 617.[vii]Union of India & Ors. Vs. Lieutenant Colonel Dharamvir Singh reported in15 SCC 793.[viii]Sanjay Kumar & Ors. Vs. Narinder Verma & Ors. Reported in6 SCC 467.11None of the arguments advanced by Mr. Syed learned Senior Advocate appearing for the appellants appeal to us. This is not a case of replacement of temporary ad hoc employees by another set of ad hoc or temporary employees. The appellants were engaged on contractual basis for fixed period at fixed pay for specific work. Their period of engagement having come to an end there is no illegality in discontinuing their services. The appellants enjoyed the extension as and when the University thought it proper to grant them depending upon the requirement of work.11.1The submissions of Mr. Syed would only attain significance only if it is established that the work which was Page 15 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTtaken from the appellants is now being outsourced through an agency for fresh engagement. But according to the University as per the stand taken in the affidavit filed by it that the work which the appellants were discharging at the respective center is no longer required.11.2This is not a case of ad hoc replacing ad hoc employee. If the appellants were engaged for a specific work and their requirement was for a fixed period and if the same is disputed apparently such disputed facts cannot be resolved under writ jurisdiction.11.3The next submission that there are vacancies in the University against which the appellants could be continued also fails for the above reason. Lastly that the University is exploiting by not filling up the regular posts would be a policy decision of the University and this Court cannot enter into that aspect. Insofar as Civil Applications are concerned the challenge to the e tender for engaging an outsourcing agency cannot be entertained for the reason that it was not the subject matter before the learned Single Judge.Page 16 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT11.4The judgment in the case of State of Haryana and others vs. Piara Singh and otherswould have any application to the facts of the present case. It was a case considering the regularization of the ad hoc temporary employees and the observations made in paragraphs 46 and 47 to the effect that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but should be replaced by a regularly selected candidate in order to avoid arbitrary action on the part of the employer. In the present case the stand of the University is that the University does not require any further services in the office department where the appellants were working. So it is not a case of replacement of ad hoc by ad hoc or contractual by contractual. The question is as to whether the work exists for which services would be required or not would be a question of fact and can be only decided by leading evidence by the parties. Such disputed question or issue cannot be decided under Article 226 of the Constitution. 11.5 The other judgments viz.Pradeep Navinbhai Patel and others[ii] State of Haryana and others Page 17 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTvs. Piara Singh and others[iii] Kanubhai Karsanbhai Bhava[iv] Navinbhai Dhirajbhai Kambli and others[v] Ruchi Sanatkumar Joshi and others[vi] Prajapati Hitesh Mohanlal[vii] Narinder Singh AhujaandCommittee of Management Lala Babu Baijal Memorial Inter College and anotherrelied upon by Mr. I.H.Syed relate to replacement of ad hoc temporary contractual employees by a fresh set of ad hoc temporary contractual employees. In none of the cases it was an issue as to whether the services of those who are being replaced or that the work which was being performed by those who were discontinued was still required or not In the present case the specific stand of the University is that the work which was being performed by the appellants was no longer required by the University to be continued and as such there was no question of any replacement of the present appellants by the University through an outsourcing agency for carrying the work which they were doing. The requirement of the University is for other posts but not for the work which was being carried out by the Page 18 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTappellants. As such none of the judgments relied upon by the appellants would have any application to the facts of the present case.11.6In the case of State of Punjab vs. Jagjit Singh and othersit related to the applicability of the principles of equal pay for equal work and thus will have no application to the facts of the present case.11.7None of the other judgments relied upon by Shri Syed has any applicability to the facts of the present case in view of the specific stand of the University that the work for which the appellants had been engaged no longer exist and as such there would no case of any replacement of the appellants by a fresh set of contractual employees.11.8On the other hand the judgments relied upon by Mr. Shelat on different aspects may have some relevance but once we have held that the appellants have not been able to make out a case in order to find any fault with the judgment of the learned Single Judge we do not propose to Page 19 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTburden this judgment by referring to the case law relied upon by Mr. Shelat. We thus do not find any infirmity in the judgment of the learned Single Judge warranting interference in appeals.12For all the reasons recorded above both the appeals lack merit and accordingly they are dismissed. Connected Civil Applications also stand disposed off.(VIKRAM NATH CJ)GAURAV J THAKER P. SUBRAHMANYAMPage 20 of 20

Contradictions in place of occurrence, identity and evidence does not warrant conviction of accused: High Court of Calcutta

Where there is contradiction with regard to place of occurrence, identity of the appellant, contradiction between the evidence of the victim girl and the evidence of the Medical Officer, conviction of the appellant ought not to have been warranted. This was decided in the case of Soumen @ Nemai Patra –Vs State of West Bengal [CRA 782 of 2015] by the Hon’ble Justice Bibek Chaudhuri in the High Court of Calcutta. The brief facts of the case are that a complaint was made against the petitioner, saying that he tried to commit rape upon the 16 year old deaf and dumb daughter of the petitioner in the absence of him and his wife. After the police investigated the matte, the criminal proceedings took place as per the procedure of law. The prosecution, at the trial stage examined 9 witnesses and produced evidence, sufficient to convince the judge that the accused was guilty. He was thereafter sentenced for three years. This petition is filed to challenge the order passed by Sessions Trial Court. The counsel for the appellant points out many discrepancies in the case. Firstly, he contends that the FIR file had the name of the accused as Sonai Patra but later or on it was discovered that the accused’s actual name is Nemai Patra. Also, In view of such discrepancy, the Investigating Officer did not take any step for holding TI Parade of the suspect. Therefore, identity of the appellant as the perpetrator of the offence remains doubtful. Secondly, the victim girl gave different accounts of instant at different point of time. She stated to her parents that the accused attempted to commit rape upon her. On the next day she stated before the learned Magistrate under Section 164 of the CrPC that she was raped by the appellant. Advocate for the appellant also drew the attention in respect of contradiction in the evidence on record with regard to place of occurrence. In the written complaint the informant stated that the alleged offence was committed in the room of the victim girl in the evening. But in cross examination, the victim girl stated that before the incident one person had taken her to another place from her house and the appellant committed such offence upon her. Deciding upon this case, the court relied upon the case of Phool Chand vs. State of U.P 2004 Cri.L.J 1904  where it was held “ statement recorded under Section 164 of the Code of Criminal Procedure cannot be relied on for the purpose of conviction”. The court observed that in this case that Trial Judge has committed the same mistake in violation of the ratio Phool Chand’s case and considered the statement recorded under Section 164 of the Code of Criminal Procedure of the victim girl as substantive evidence in chief. This is absolutely in contravention of the scope of evidentiary value of a statement under Section 164 of the Code of Criminal Procedure and against the principles of examination, cross examination and reexamination of a witness under the Indian Evidence Act.  

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI CRA 7815 Soumen @ Nemai Patra Vs State of West Bengal For the Appellant: For the State: Ms. Pronoti Goswami. Mr. Ranabir Roy Chowdhury Mr. Mainak Gupra. Heard on: January 27th 2021. Judgment on: 05th March 2021. BIBEK CHAUDHURI J. : This is an appeal filed by the convict appellant against the judgment and order of conviction dated 26th November 2015 and sentence dated 27th November 2015 passed by the Additional District and Sessions Judge 2nd Court at Contai at Purba Medinipur in Sessions Trial No.6(8) of 2012 arising out of Sessions Case No.223(8) of 2012 whereby the appellant was sentenced to suffer rigorous imprisonment for three years and also to pay fine of Rs.4000 in default to suffer simple imprisonment for six months. Patashpur P.S Case No.90 2009 dated 5th September 2009 under Sections 376 511 of the Indian Penal Code was initiated on the basis of a written complaint submitted by one Manoranjan Dalui alleging inter alia that on 4th September 2009 at about 6 pm taking opportunity of the absence of the informant and his wife the appellant tried to commit rape upon her deaf and dumb daughter by tearing her wearing apparels. They came to know about the incident after returning home from outside. Police took up the case for investigation and on completion of investigation filed charge sheet against the appellant under Sections 376 511 of the Code of Criminal Procedure. The said case on being committed to the learned Court of Sessions was transferred to the Fast Track 3rd Court of the learned Additional Sessions Judge at Contai for trial. It is found from the lower court record that the learned Trial Judge framed charge against the appellant under Sections 376 511 of the Indian Penal Code on 27th August 2012. Again on 28th February 2014 the charge was altered and alternate charge under Section 376 of the Indian Penal Code was framed against the accused appellant. As the appellant pleaded not guilty trial of the case In order to establish charge against the accused prosecution examined as many as nine witnesses. Series of documents are marked as exhibits which I propose to refer subsequently in the body of the commenced. The learned Trial Judge on due consideration of evidence on record found the accused guilty for committing offence under Sections 376 511 of the Indian Penal Code and convicted and sentenced him accordingly. Learned Advocate for the appellant at the outset draws my attention to the FIR submitted by PW1 Manoranjan Dalui. In the FIR the informant stated the name of the offender as Sonai Patra. However in his examination in chief he stated that the name of the accused is Nemai Patra and he wrongly described the accused as Sonai. From the cross examination of PW1 it transpired that at the time of the alleged occurrence the victim girl was aged about 16 years. She was deaf and dumb. When the incident took place he and his wife were not present in the house. When they came back they found the victim girl crying sitting in her room. On being asked she expressed by making certain signs that she was raped by the accused. It is specifically pointed out by the Advocate for the appellant that after the incident PW1 went to the house of the appellant and informed the matter to the family members of the accused. They told the informant to sit and settle the dispute. But the father of the accused abused them and did not agree to talk to them. So on the next day he lodged the FIR. According to the learned Advocate for the appellant if the evidence of PW1 is accepted on its face value then a reasonable suspicion arises on the issue as to why the father of the victim initially wanted to settle the dispute amicably. If his girl is ravished by the accused he would certainly file complaint before the police without unnecessary delay. However in the instant case the FIR was lodged after more than 24 hours of the incident. It is further submitted by the learned Advocate for the appellant that the de facto complainant alleged in her written complaint that the accused admitted to commit rape upon her deaf and dumb daughter. But in his evidence he stated that her daughter was raped by the appellant. PW2 Naru Gopal Majhi is a neighbour of the de facto complainant. According to him he heard the incident from the de facto complainant. PW3 is also a neighbour of the de facto complainant. His evidence is of no important being in the nature of hearsay. 10. PW5 is the victim girl. Her oral testimony was interpreted by PW4 Sandipan Sinha who is a teacher of deaf and dumb school at Contai. In her evidence in chief the victim girl proved her signature on her statement recorded under Section 164 of the Code of Criminal Procedure which was marked as exhibit 2 1. Signature of the victim girl on medical examination report was marked as exhibit 3. 11. Learned Advocate for the appellant submits that the name of the appellant was stated by the de facto complainant as Sonai Patra. However during investigation it transpired that the name of the appellant is Nemai Patra. In view of such discrepancy the investigating authority ought to have made arrangement for TI Parade of the suspect. However the Investigating Officer did not take any step for holding TI Parade of the suspect. Therefore identity of the appellant as the perpetrator of the offence remains doubtful. The learned trial judge did not consider the said aspect of the identification of the offender. It is further pointed out by the learned Advocate for the appellant that in a case under Section 376 of the Indian Penal Code or attempt to commit such offence solitary evidence of the victim girl is sufficient if her evidence is held to be trustworthy. In order to appraise as to whether evidence of the victim is trustworthy or not in a case of sexual abuse the medical evidence is of great importance. In the instant case the offence was alleged committed on 4th September 2009. The victim girl was medically examined on 5th September 2009. The medical examination report was exhibited as exhibit 3 during the trial of the case. At the time of medical examination the victim girl stated the name of the appellant as Sonai Patra. The Medical Officer found one biting mark on the leap of the victim and nail marks on the left side of the chest forearm and left breast. He did not find any injury or marks of violence on the genital organ of the victim girl. 12. Referring to the evidence of the victim girl PW5 and the evidence of the doctor PW9 and exhibit 3 learned Advocate for the appellant argues that the victim girl gave different accounts of instant at different point of time. She stated to her parents that the accused attempted to commit rape upon her. On the next day she stated before the learned Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure that she was raped by the appellant. Again the Medical Officer did not find any evidence on her person which suggested commission of sexual intercourse. 13. Learned Advocate for the appellant further submits that from the evidence of the victim girl it is ascertained that she used to stay in her room with her three unmarried sisters. It is not possible for any man to commit such offence inside a room in the presence of the sisters of the victim girl. Learned Advocate for the appellant also draws my attention in respect of contradiction in the evidence on record with regard to place of occurrence. In the written complaint the informant stated that the alleged offence was committed in the room of the victim girl in the evening. But in cross examination the victim girl stated that before the incident one person had taken her to another place from her house and the appellant committed such offence upon her. Therefore the place of occurrence shifted from the room of the de facto complainant to a place outside his house. In view of such circumstances where there is contradiction with regard to place of occurrence identity of the appellant contradiction between the evidence of the victim girl and the evidence of the Medical Officer conviction of the appellant ought not to have been warranted. 15. Learned P.P in Charge on the other hand submits that leaving aside the evidence of other witnesses if the evidence of the victim girl and the Medical Officer are considered this Court cannot take any different view other than the conclusion arrived at by the learned Trial Judge. It is submitted by him that the victim is an unfortunate deaf and dumb girl. She cannot speak or hear. During her evidence she identified the appellant as the accused who committed offence of sexual assault upon her. The Medical Officer found nail marks on her chest breast forearm and hand. He also found a biting mark on her leap. The said marks of violence clearly suggest that appellant attempted to commit rape upon her. It is true that the victim girl stated before the learned Judicial Magistrate in her statement recorded under Section 164 of the Code of Criminal Procedure that she was raped by the accused. Such statement of the victim girl might not be true but for such reason entire evidence of the victim girl which is supported by the medical report prepared by PW9 cannot be thrown away altogether. Accordingly the learned P.P in Charge submits that there is no reason to take a different view in the instant appeal and the judgment and order of conviction and sentence against the appellant should be affirmed. 16. Having heard the learned Advocates for the appellant and the respondent and on perusal of the entire evidence on record I like to point out at the outset that the learned Trial Judge committed a grave error in accepting the statement of the victim girl as her evidence in chief. It is needless to say that a statement made by witness under Section 164 of the Code of Criminal Procedure is not inadmissible in evidence but it can be used for limited purpose to corroborate or contradict a statement made in the court in the manner provided under Section 157 and Section 145 of the Indian Evidence Act. The statement made under this section cannot be used as a substantive piece of evidence. But it can be used for the purpose of corroboration or contradiction it can also be used to cross examine the person who made it to show that the evidence of the witness is false but that does not establish that what he stated out of court in her statement under Section 164 of the Code of Criminal Procedure is true. A statement made by witness under Section 164 of the Code of Criminal Procedure can be used only for the purpose of cross examining him her and discredit his her evidence. In Phool Chand vs. State of U.P reported in 2004 Cri.L.J 1904 it is held that statement recorded under Section 164 of the Code of Criminal Procedure cannot be relied on for the purpose of conviction. In the instant case the learned Trial Judge has committed the same mistake in violation of the ratio Phool Chand’s case and considered the statement recorded under Section 164 of the Code of Criminal Procedure of the victim girl as substantive evidence in chief. This is absolutely in contravention of the scope of evidentiary value of a statement under Section 164 of the Code of Criminal Procedure and against the principles of examination cross examination and re examination of a witness under the Indian Evidence Act. On this ground only I have no other alternative but to hold that there is no evidence of the victim girl in the instant case in support of the charge framed by the It will also not be out of place to mention that the appellant was convicted for committing offence under Section 376 511 of the Indian prosecution. Penal Code. In view of the catena of judgments of Hon’ble Supreme Court as well as different High Courts it is abundantly clear that slight degree of penetration of the penis in vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC. In the backdrop of settled legal position if the evidence on record is examined the conclusion becomes irresistible that the conviction of the appellant under Sections 376 511 IPC is wholly unsustainable. What to talk about penetration there has not been any attempt of penetration to the slightest degree. From the medical report it is ascertained that the victim girl suffered some superficial injury of nail marks on her person. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the victim girl. The medical evidence also did not indicate in such attempt. Catching hold of the victim and causing injury on her hand chest and breast cannot be said to be an attempt to rape. I have given an anxious thought over the question as to whether such act perpetrated upon the victim would amount to assault or force use to outrage the modesty of the victim accordingly. However in view of giving different description of name of the accused at different point of time during investigation failure on the part of the investigating officer to conduct test identification parade of the appellant and shifting of the place of occurrence I also cannot hold the accused guilty for committing offence under Section 354 of the Indian Penal Code. 22. For the reasons stated above I come to an irresistible conclusion that the conviction of the accused appellant for the offence punishable under Section 376 511 IPC is unsustainable. 23. The appeal be and the same is allowed on contest however without 24. Accordingly the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge 2nd Court Contai at Purba Medinipur in Sessions Trial No.6(8) of 2012 is set aside. 25. The accused appellant is acquitted from the charge under Sections 376 511 IPC set at liberty and released from the bail bond. 26. Let a copy of this judgment be sent to the learned trial court along with lower court record. Bibek Chaudhuri J.)

Petitioner accused in illicit sale of the Indian Made Foreign Liquor was granted bail as his continued detention will cause prejudice to him : High Court of Kerala

Petitioner who was accused to be engaged in illegal sale of Indian Made Foreign Liquor was granted bail after custody of 20 days as his continued detention is not necessary for the purpose of investigation and was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE GOPINATH P in the case of ANIKUTTAN vs. STATE OF KERALA (BAIL APPL. NO. 2038 OF 2022) on 21st March, 2022. Brief facts of the case are that allegation against the petitioner is that on 01.03.2022 at 12.45 pm, the petitioner was found in possession of 12.75 litres of Indian Made Foreign Liquor and engaged in illicit sale in contravention of the provisions of the Abkari Act and that an amount of Rs.31,200/-, which, allegedly, is the proceeds of sale, also was recovered from the petitioner. Learned counsel for petitioner submits that the petitioner has been in custody for 20 days and that his continued detention is not necessary for the purpose of any investigation. Petitioner has been falsely implicated in the matter and that the petitioner was not engaged in any illicit sale of the Indian Made Foreign Liquor. It is also submitted that the continued detention of the petitioner will cause prejudice to the petitioner. Learned Public Prosecutor vehemently opposes grant of bail. It is submitted that there are criminal antecedents insofar as the petitioner is concerned and Crime No.78 of 2020 of the very same Excise Range Office has been registered against the petitioner alleging commission of similar offences. It is further submitted that if the petitioner is released on bail, there is every chance of repeating similar offences in future. Regard to the facts and circumstances of the case and considering the fact that the petitioner has been in custody for 20 days and since his continued detention may not be necessary for the purpose of any investigation, Court decided that the petitioner can be granted bail, subject to conditions. The apprehension expressed by the learned Public Prosecutor that the petitioner may engage in similar offences, if he is released on bail, can be safe guarded by imposing appropriate conditions. )The petitioner shall execute bond for a sum of Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court, petitioner shall not attempt to interfere with the investigation or to influence any witness and shall appear before the investigating officer whenever called. If any of conditions is violated the investigating officer may file an application before the jurisdictional court for cancellation of bail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE GOPINATH P MONDAY THE 21ST DAY OF MARCH 2022 30TH PHALGUNA 1943 BAIL APPL. NO. 2038 OF 2022 CRIME NO.24 2022 OF VAMANAPURAM EXCISE RANGE OFFICE PETITIONER ACCUSEDr w Section 63 of the Kerala Abkari Act 3. The allegation against the petitioner is that on 01.03.2022 at 12.45 pm the petitioner was found in possession of 12.75 litres of Indian Made Foreign Liquor and engaged in illicit sale in contravention of the provisions of the Abkari Act and that an amount of Rs.31 200 which allegedly is the proceeds of sale also was recovered from the petitioner. 4. The learned counsel for the petitioner submits that the petitioner has been in custody for 20 days and that his continued detention is not necessary for the purpose of any investigation. It is further submitted that the petitioner has been falsely implicated in the matter and that the petitioner was not engaged in any illicit sale of the Indian Made Foreign Liquor. It is also submitted that the continued detention of the petitioner will cause prejudice to the BA No.2038 2022 5. The learned Public Prosecutor vehemently opposes grant of bail. It is submitted that there are criminal antecedents insofar as the petitioner is concerned and Crime No.720 of the very same Excise Range Office has been registered against the petitioner alleging commission of similar offences. It is further submitted that if the petitioner is released on bail there is every chance of repeating similar offences in future 6. Having regard to the facts and circumstances of the case and considering the fact that the petitioner has been in custody for 20 days and since his continued detention may not be necessary for the purpose of any investigation I am of the view that the petitioner can be granted bail subject to conditions. The apprehension expressed by the learned Public Prosecutor that the petitioner may engage in similar offences if he is released on bail can be safe guarded by imposing appropriate conditions In the result the bail application is allowed and it is directed that the petitioner shall be released on bail subject to the following a) The petitioner shall execute bond for a sum of Rs.50 000 Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional BA No.2038 2022 b)Petitioner shall appear before the investigating officer in Crime No. 24 of 2022 of Vamanapuram Excise Range Office Thiruvananthapuram District whenever called upon c) The petitioner shall not attempt to interfere with the investigation or to influence any witness in Crime No. 222 of Vamanapuram Excise Range Office Thiruvananthapuram District d)The petitioner shall not involve in any other crime while on to do so If any of the aforesaid conditions is violated the investigating officer in Crime No. 24 of 2022 of Vamanapuram Excise Range Office Thiruvananthapuram District may file an application before the jurisdictional court for cancellation of bail

The law of Limitation aims to prevent disturbance: High Court of Jammu & Kashmir and Ladakh

The entries of mutation by way of revision amount to undue delay and thereby the Financial Commissioner was not justified in overlooking the question of delay while filing the revision. The Hon’ble High Court Of Jammu & Kashmir And Ladakh before the Hon’ble Chief Justice Pankaj Mithal and the Hon’ble Mr. Justice Vinod Chatterji Koul in the matter of Ghulam Qadir Bhat & Ors. vs. Financial Commissioner (Revenue) & Ors [LPAOW No. 33/2017].  The facts of the case were associated with a challenge under Letters Patent Appeal. Regarding two mutations, a controversy was raised in this appeal. Entry no. 156 dated 28 Fag, 1996 and other mutation entry 470 dated 10 August 1999. Mutation entry no. 156 was coincidentally held to be correct by all authorities and the Single Judge. Thus, the dispute remains with mutation no. 470. If the date of the said mutation was taken as 10.08.1999, then the controversy involved as if the challenge of revising the said entry after 70 years was reasonable or not. The learned advocate, Mr. Azhar-ul-Amin, representing the respondents, argued that the said mutation was attached on 10.08.1999 and no limitation for revision was provided. It was entertained after 5-6 years.  Mutation no.470 was the estate left behind by Abdullah who died issueless. On his death, his share was mutated to his brother Qadir, in the name of Qadir vide mutation No. 470. Later the grandson of the deceased sister Mst. Khurshi, Mushtaq Ahmad Tantray filed a revision before the Settlement Commissioner by challenging mutation no.470. He stated that the personal property should have been divided into 2:1 and that the entire mutation of the personal property in the name of the said brother Qadir was not in accordance with Muslim Law. The petitioner-appellant challenged the order of the Settlement Commissioner while filing the writ petition dated 21.02.2011 and directed for the demarcation of the land on the basis of the modified mutation entry, in paragraph No. 7 of the petition categorically affirming that the mutation No. 470 is dated 10.08.1999. The petitioner submitted that none of the sons of the sister Mst. Khurshi, during their lifetime, objected to the mutation, therefore the grandson, Mushtaq Ahmad Tantray, after a gap of 70 years had no right to object.  Furthermore, the original revenue documents were in ‘Urdu’ language. The said documents were read carefully by the Hon’ble Mr. Justice Vinod Chatterji Koul. After reading it was established that the mutation was attested on 10.08.1999 of Bikrami. Eventually, the land in question in the said mutation was attested on 10.08.1999, whereby the revision was filed after about 63/73 years.  After evaluating all the facts, it was said the instant case was a case of a classic example of inordinate and unreasonable delay in the exercise of revisional power. The Hon’ble Court was of the view “In view of the aforesaid facts and circumstances, we are of the opinion that the writ court, as well as the revisional courts, have manifestly erred in law in exercising their power and in directing for the modification of the mutation entry No. 470 attested on 10th day of the 8th month of 1999 Bikrami Samvat. The judgment and order of the learned Single Judge dated 16th March 2017 passed in OWP No. 1302/2013 are hereby quashed and so are the orders of the Settlement Commissioner dated 10th February 2006 and the Financial Commissioner dated 21st February 2011 are quashed. The appeal is allowed with no order as to costs.” Click here to read the Judgment

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPAOW No. 33 2017 Reserved on 16.09.2021 Pronounced on 24.09.2021 Ghulam Qadir Bhat & Ors. Through: Mr. M. A. Qayoom Adv. Financial Commissioner& Ors. Through: Mr. D. C. Raina AG with Mr. Sajad Ashraf GA. Mr. Azhar ul Amin Adv. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGMENT PANKAJ MITHAL CJ The judgment and order of the writ court dated 16th March 2017 dismissing OWP No. 1302 2013 Abdul Gani Naik vs. Financial Commissionerand others is under challenge in this Letters Patent Appeal. The controversy raised in this appeal is regarding the two mutations entries No. 156 dated 28 Fag1996 Bikrami Samvat.and to the mutation entry 470 dated 10.08.1999 which is alleged to be of the 10th day of the 8th month of 1999 Bikrami Samvatwhereas the other side contends that it is of the year 1999 AD of the Georgian Calendar. It may be pertinent to mention here that the dispute with regard to mutation entry No. 156 has concurrently been held to be correct and maintained by all the authorities below as well the Single Judge. Therefore in the appeal the dispute only remains with regard to the mutation entry No. 470. LPAOW No. 33 2017 The sole controversy involved is whether the said entry could have been challenged by way of a revision after more than 70 years if the date of attestation of mutation is taken to be 10.08.1999 Bikrami or it is within reasonable time from the attestation of the mutation if the date is taken to be 10.08.1999 AD. The sole argument of Mr. M. A. Qayoom is that the aforesaid mutation No. 470 was attested on 10th day of 8th month of 1999 Bikrami Samvat and not on 10.08.1999 AD and as such the revision against it filed on 01.07.2005 before the Settlement Commissioner under Section 15 of the J&K Land Revenue Act was highly belated and the said mutation could not have been disturbed by filing revision after such a long distance of time. 6. Mr. Azhar ul Amin learned counsel contends that the aforesaid mutation was attested on 10.08.1999 AD and since there is no limitation provided for the revision it was rightly entertained after 5 6 years of the said entry. The mutation was rightly modified in accordance with the Muslim Personal Law which was applicable to the parties. In view of the short controversy so involved though it is not necessary to go into the factual background but for the sake of clarity and convenience it is considered appropriate to narrate the factual position also in brief. In essence the dispute concerning mutation No. 470 relates to the estate left behind one Abdullah who died issueless. He had a brother Qadir and a sister Khurshi. He had one share in 30 Kanals and 5 marlas of land situate at village Natipora whereas the other two shares belonged to his brother Qadir. On his death his share was mutated in the name of Qadir vide mutation No. 470. One Mushtaq Ahmad Tantray grandson of sister of the deceased Mst. Khurshi filed a revision before the Settlement Commissioner challenging mutation No. 470 of village Natipora contending that according to the Muslim Law her grandmother was entitled to 1 3rd share in the property of the deceased. The Settlement Commissioner vide order dated 10.02.2006 opined that the personal property of the LPAOW No. 33 2017 deceased would have devolved in the ration of 2:1 in favour of his brother Qadir and sister Mst. Khurshi respectively. Therefore mutation No. 470 recording the entire property of the deceased in the name of brother Qadir is not in accordance with the Muslim Law. The Settlement Commissioner in terms of Section 15of the J&K Land Revenue Act submitted a reference to the Financial Commissioner who accepted the same vide order dated 21.02.2011 holding that as the parties have accepted that the devolution of the estate would be governed by the Muslim Personal Law both the brother and the sister will get share in the ratio of 2:1. 10. The writ court while examining the mutation No. 470 treated the said attestation to have been made on 10.08.1999 AD and since the revision was filed on 01.07.2005 held that it was filed within 6 years and since there is no limitation provided for filing the revision under Section 15 of the J&K Land Revenue Act and there is no inordinate delay and the substantial justice requires that the estate of the deceased should devolve both upon his brother and sister in the ratio of 2:1 the said mutation need to be corrected accordingly. 11. The petitioner appellant in filing the writ petition challenging the order of the Settlement Commissioner dated 10.02.2006 order of the Financial Commissionerdated 21.02.2011 and the order of the Naib Tehsildar dated 14th August 2013 directing for demarcation of the land on the basis of the modified mutation entry in paragraph No. 7 of the petition categorically averred that the mutation No. 470 is dated 10.08.1999 Bikrami and this mutation was never objected either by Mst. Khurshi during or by his two sons Rehman and Ali during their life time therefore her grandson Mushtaq Ahmad Tantray has no right to object to it after a gap of more than 70 years. 12. The contesting respondents in reply to the writ petition simply stated that the mutation No. 470 was attested on 10.08.1999 without mentioning whether the said date refers to Bikrami Samvat or to the Georgian Calendar. In response to paragraph No. 7 he simply stated that mutation No. 470 was made clandestinely and fraudulently in the absence of the answering respondents or their ancestors. Since the said LPAOW No. 33 2017 attestation is based on fraud law of limitation would not apply as fraud vitiates everything. He nowhere contended that the said attestation was not made on 10.08.1999 Bikrami. 13. The revenue documents relied upon from the side of the respondents to establish that the aforesaid date refers to the English date inasmuch as everywhere it is mentioned English. The said documents are in Urdu and it is below the signatures appearing therein that the word “English” has been mentioned to denote that it has been signed in English. The date 11.10.1999 is separately mentioned and the word ‘English’ mentioned there does not refer to the date of the entry. 14. Learned Advocate General Mr D. C. Raina assisted by Mr. Sajad Ashraf GA. has produced before us the original record containing Parte Patwar and Parte Sarkar to contend that the date 10.08.1999 in respect of mutation No. 470 is of the year 1999 Bikrami and not AD. The said documents have been examined by us in original. They are in Urdu which have been read over carefully by one of us who knows Urdu very well and he has explained the documents to the other Hon’ble Judge as well. The said documents do establish that the said mutation was attested on 8th day of 10th month of 1999 Bikrami. There is no reason to disbelieve the said original documents. The above documents are sacrosanct to prove the actual date of the attestation of mutation No. 470. The subsequent mutation entries in respect of the land in question. also supports the fact that the above mutation was attested in 1999 Bikrami and not in 1999 AD. Accordingly we find that the said attestation was made on the 8th day of the 10th month of the year 1999 Bikrami which corresponds to the year 1941 42 AD. The revision was filed on 01.07.2005 meaning thereby that it was filed after about 63 73 years. In view of the above the question that arises is even if no limitation is provided for filing a revision whether the revision could have been entertained after such a long gap of time so as to disturb the entries on the basis of which the property has exchanged hands and many other entries have come to be recorded subsequently. LPAOW No. 33 2017 16. The law of limitation is based upon the public law doctrine that there should be an end to a litigation and that there ought to be finality attained to a decision with the passage of time. The purpose to provide limitation for taking recourse to a legal remedy is not to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics and seek their remedy within the prescribed time or a reasonable time so that the matter may not remain alive forever. In a way statutes of limitation and prescription are statutes of peace and repose. The interest of state requires that there should be an end to litigation. The public policy therefore requires application of law of limitation. The object of the law of limitation is to prevent disturbance of what has been acquired in equity and justice by long enjoyment and not to restore what may have been lost by party’s own inaction. 18. The learned Single Judge in deciding the writ petition has unnecessarily brushed aside his own decision in OWP No. 1833 2015 Mst. Mali v. Financial Commissionerand others on 27.05.2016 wherein he himself held that the delay of 14 years in challenging the mutation entries by way of a revision amounts to inordinate delay and therefore the Financial Commissioner was not justified in overlooking the question of delay in filing the revision. 19. The Apex Court in Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors3 SCC 695 has held that even where no limitation is prescribed for invoking the revisional power that will not permit the authorities to exercise the power arbitrarily with inordinate delay. In Zaina vs. Financial Commissioner & Ors. 1983 SLJ 1 this Court in context with the filing of revision under Section 15 of the J&K Land Revenue Act held that though no limitation is prescribed for filing a revision but it must be filed within the time prescribed for filing appeals and in case there is delay the revisional court has power to condone it after recording reasons for doing it. 21. The Bombay Land Revenue Code 1879 also did not provide for any limitation for exercising the revisional power by the Commissioner. LPAOW No. 33 2017 The Apex Court in State of Gujarat vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297 held that in spite of the fact the provisions do not prescribe for any limitation for exercising revisional power this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case. In state of A.P. & Anr. vs. T. Yadagiri Reddy & Ors.16 SCC 299 it was held that where the legislature in its wisdom did not fix any time limit for exercising revisional power and inserted the words “at any time” it does not mean that the legislature intended to leave the orders passed under the Act open to alteration and variation for an indefinite period as it would perpetuate uncertainty. In view of the aforesaid case law the inescapable conclusion is that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised. 24. The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus it is a clear case of unreasonable delay in exercise of revisional power. 25. A complete procedure for maintaining the records or the annual record of rights is provided under the J&K Land Revenue Act. The scheme of the above Act clearly provides that the dispute as to the mutation has to be decided by the revenue authorities in a summary manner and that the final order passed by the Revenue Officer as to who is best party entitled to the property is always subject to any decree or order that may be subsequently passed by any civil court of competent jurisdiction. Section 32 of the J&K Land Revenue Act also authorizes a person aggrieved by any entry appearing in the revenue records to institute a suit before the Collectorfor the correction of the record and for the possession of the right claimed if he is not in possession. LPAOW No. 33 2017 It may be noted that the mutation entries have not been recognized as document of titles of property. They are simply meant for fiscal purposes to enable the Government to collect revenue. These entries do not either create any right title or interest in the land of any party nor do they extinguish any such right of any party. The said entries are always subject to the decree of a civil court of competent jurisdiction. Therefore whenever a long standing revenue entry is sought to be disturbed it is always by way of a declaratory suit before the competent court. In view of the aforesaid facts and circumstances we are of the opinion that the writ court as well as the revisional courts have manifestly erred in law in exercising their power and in directing for the modification of the mutation entry No. 470 attested on 10th day of the 8th month of 1999 Bikrami Samvat. The judgment and order of the learned Single Judge dated 16th March 2017 passed in OWP No. 1302 2013 is hereby quashed and so are the orders of the Settlement Commissioner dated 10th February 2006 and the Financial Commissioner dated 21st February 2011 are quashed. 28. The appeal is allowed with no order as to costs. JUDGE CHIEF JUSTICE SRINAGAR 24.09.2021 Altaf Whether the order is reportable LPAOW No. 33 2017

Grant or rejection of a bail application has a direct bearing on the fundamental right to life and liberty: High Court of Delhi

It is no longer res integra that any interpretation of the provisions of Section 438 CrPC has to take into consideration the fact that the grant or rejection of a bail application has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally considering its beneficial nature and the same was upheld by High Court of Delhi through the learned bench led by Justice Chandra Dhari Singh in the case of SANGEETA BHATIA vs. STATE OF NCT OF DELHI [BAIL APPN. NO. 3067/2018] on 14.02.2022. The facts of the case are that Pawan Bhatia approached M/s. Splendor Landbase Limited and represented that he along with his wife and son were the lawful owners of a land in the revenue estate of Gurgaon which was free from all encumbrances. Based on the aforesaid representations and inducements, the complainant company entered into an MOU with the accused persons. The complainant company was induced into agreeing to pay an amount of Rs. 5 crores to the accused. It was alleged that the Managing Director of the complainant company sent several messages to Pawan Bhatia requesting to refund the amount but he never replied to such messages. The accused had misappropriated the monies of the Complainant Company and caused wrongful loss to the Complainant Company. The present applications have been filed on behalf of the applicants praying for anticipatory bail. The applicant’s counsel contended that the applicants are the owner of the land in their individual capacity. It was further submitted that neither Sangeeta Bhatia was a signatory to the Agreement between the complainant and Pawan Bhatia nor any covenant was imposed upon her which she had failed to fulfil. It was contended that even the balance sheet of the complainant company for the said period does not show any amount being paid to the applicants except the amount which has been returned by the applicants. The respondent’s counsel opposed the instant applications and stated that the applications be rejected as the accused had dishonest intentions since the beginning of the transaction and had defrauded the complainant wilfully. It was further stated that the accused have misappropriated and mis-utilized the monies of the complainant company and caused wrongful loss to the complainant. Thus, the offences committed by the applicants is grave in nature and hence the petitions should be dismissed for granting anticipatory bail. In view of the aforementioned facts and circumstances, the instant anticipatory bail applications were allowed as the applicants were entitled to indulgence of this Court and this Court was inclined to grant anticipatory bail to the applicants as being prayed for. The Court observed, “It is no longer res integra that any interpretation of the provisions of Section 438 CrPC has to take into consideration the fact that the grant or rejection of an application has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally considering its beneficial nature.”

IN THE HIGH COURT OF DELHI AT NEW DELHI 2nd February 2022 Reserved on: Pronounced on: 14th February 2022 BAIL APPN. NO. 3067 2018 SANGEETA BHATIA Petitioner STATE OF NCT OF DELHI Respondent Through: Mr. Arvind Varma Sr. Advocate with Mr. Sanjeev Mahajan Ms. Smridhi Sharma and Mr. Sarthak Chiller Advocates Through: Ms. Kusum Dhalla APP for State along with SI Harpal Madan P.S. EOW Mr. Amit Khanna Mr. Samir Ali Khan Mr. Nipun Kumar and Mr. Sahil Tokas Advocates for R 2 Petitioner Through: Mr. Arvind Varma Sr. Advocate with Mr. Sanjeev Mahajan Ms. Smridhi Sharma and Mr. Sarthak Chiller Advocates Through: Ms. Kusum Dhalla APP for State along with SI Harpal Madan P.S. EOW Mr. Amit Khanna Mr. Samir Ali Khan Mr. Nipun Kumar and Mr. Sahil Tokas Advocates for R 2 STATE OF NCT OF DELHI Respondent BAIL APPN. NO. 1116 2019 LAKSH BHATIA BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS + BAIL APPN. NO. 1119 2019 PAWAN BHATIA Petitioner Through: Mr. Arvind Varma Sr. Advocate with Mr. Sanjeev Mahajan Ms. Smridhi Sharma and Mr. Sarthak Chiller Advocates STATE OF NCT OF DELHI Respondent Through: Ms. Kusum Dhalla APP for State along with SI Harpal Madan P.S. EOW Mr. Amit Khanna Mr. Samir Ali Khan Mr. Nipun Kumar and Mr. Sahil Tokas Advocates for R 2 HON’BLE MR. JUSTICE CHANDRA DHARI SINGH VIA VIDEO CONFERENCING] JUDGMENT CHANDRA DHARI SINGH J. The present applications have been filed under Section 438 of the Code of Criminal Procedure 1973 on behalf of the applicants praying for anticipatory bail in FIR bearing no. 237 2018 registered at Police Station Economic Offences Wing for offences punishable under Sections 406 420 34 of Indian Penal Code 1860in December 2012 and represented that he along with his wife Sangeeta Bhatia and his son Laksh Bhatia were the lawful owners of a land measuring 13.61 acres in the revenue estate of Village Ullawas Tehsil and District Gurgaon situated in Sector 63 A Gurgaonwhich was free from all encumbrances. It is further alleged that Pawan Bhatia represented that the said land was eligible for being developed into a Group Housing Colony after taking approvals from Director of Town and Country PlanningHaryana. Pawan Bhatia had assured that all the necessary approvals from the Competent Authority will be taken by landowners and that the Letter of Intent from the DTCP for Group Housing Colony was expected soon. It is further alleged that Pawan Bhatia and other accused offered the Complainant Company to sell and transfer the Floor Space Indexof 5 Lakhs Square Feet out of the total FSI of 11 BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS Lakhs Square Feet for a total of Rs. 200 crores with exclusive rights to undertake the development and construction of the Group Housing Colony. Based on the aforesaid representations and inducements the complainant company had entered into an MOU dated 27th February 2013 with the accused persons. It is further alleged that Pawan Bhatia signed the MOU for himself and on behalf of the other accused. It is further alleged that the Land Schedule which had been annexed with the MOU was signed by the applicant and other accused persons. Based on the representations the complainant company was induced into agreeing to pay an amount of Rs. 5 crores to the accused. It is further alleged that the complainant company prior to the execution of the MOU paid an amount of Rs. 2.50 crores and the balance amount of Rs. 2.50 crores were subsequently paid as per Clause 2 of the MOU. It is further alleged that Complainant Company enquired from the accused persons about the status of LOI the accused persons started dilly dallying and never responded to the queries of the complainant company. On enquiries made by the Complainant Company it came to the knowledge of the complainant that no LOI had been granted to the accused persons. It is further alleged that it was agreed by the parties that in case the LOI is not granted within a BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS reasonable period of time the complainant company would make a request for refund of the initial advance. It is further alleged that the Managing Director of the complainant company Hridey Vikram sent several messages to Pawan Bhatia requesting to refund the amount but he never replied to such messages. The Complainant Company made further enquiry about the said land and it was revealed that many litigations were pending qua the said land. The complainant company further alleged that a MOU with CHD Elite Realtech was executed on 8th August 2011 and the accused persons had received an amount of Rs. 2 crores. It is further alleged that the accused had the dishonest intention since the beginning of the transaction and with the same mens rea the accused had concealed and kept the complainant company in dark about the execution of the said MOU with the CHD Elite Realtech. The accused had misappropriated the monies of the Complainant Company and caused wrongful loss to the Complainant Company. It is further alleged that the accused are liable to pay an amount of Rs. 5 crores with interest @ 2% per month and compensation of Rs. 5 crores towards damages. 4. Mr. Arvind Varma Senior Advocate appearing on behalf of the applicants submitted that the applicants have falsely and frivolously been BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS implicated in the present case. Learned counsel further submitted as That the applicants are the owner of the land in their individual capacity and it has nowhere been alleged that accused are the co owners of the land for which the alleged agreement has been entered into between the parties. That neither Sangeeta Bhatia was a signatory to the Agreement between the complainant and Pawan Bhatia nor any covenant was imposed upon her which she had failed to fulfill. That even the prosecution has not sought or collected any receipt from the Complainant to prove the factum of having paid the amount as alleged in the Complaint. That the Investigating Officer had admitted in the Ld. Sessions Court that the complainant has not provided any receipt of the amount allegedly paid to the applicants. the alleged acknowledgement dated 12th September 2013 which is stated to is based on be on the back of the MOU and is forged hence is totally denied by Pawan Bhatia. That even the balance sheet of the complainant company for the said period does not show any amount being paid to the applicants except the amount which has been returned by the That even on a perusal of FIR it is clear that no prima facie case under any Section of the IPC is made out against the BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS applicants and the civil transaction has unnecessarily been given a criminal color. That the entire MOU stood cancelled and revoked with the consent of the parties and for over five years neither any litigation correspondence nor any complaint was lodged and it is only on 10th August 2018 for the first time that a complaint was made. That applicants have duly complied with the notices and joined the investigation twice after the filing of the bail application before the Ld. Sessions Court and had also cooperated with the investigation during the inquiry into the said Complaint and submitted a detailed reply along with all the That the applicants are ready and willing to offer a security by depositing the title deeds of the said land in lieu of the cash deposit of Rs. 2.50 crores. That the applicants also undertake to further join investigation on any date or to furnish any documents as required by the Investigating Officer. In light of the aforesaid it is submitted that the applicants be granted anticipatory bail. Per Contra Ms. Kusum Dhalla learned APP appearing on behalf of the State has vehemently opposed the application and stated that in the connected matters the Status Report has been filed by the State on various dates 19th February 2019 26th August 2019 26th November BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS 2019 and 21st January 2020 wherein the facts as unearthed during the course of investigation as well as the grounds for denial of the anticipatory bail have been mentioned. Ms. Dhalla while reiterating the contents of the Status Reports submitted as under: That during the interrogation the accused Pawan Bhatia had admitted the fact of execution of the MOU dated 27th February 2013 between Pawan Bhatia Smt. Sangeeta Bhatia andLaksh Bhatiaand M s Splendor Landbase Ltd. through its MD Sh. Hridey Vikram with regard to the development of 5 lakhs square feet on the land measuring 13.61 acres in Village Ullhawas Sector 63A Tehsil & Distt. Gurgaon Haryana. That he further admitted that a total amount of Rs. 1.34 crore was received from the complainant out of which Rs. 1.20 crore has been returned and only Rs. 14 lacs are pending. During interrogation he denied having received Rs. 5 crores. That he was shown the back side of last page of Land Schedule annexed with photocopy of MOU dated 27.02.13 on which it was written "Recd. Rupees 5 crores by cheque and cash. 12 09 2013 PB" which he denied having written and claimed to be forged. However the handwriting in question was sent to the FSL for examination along with specimen admitted signature handwriting of accused Pawan Bhatia. On 15th September 2019 the FSL report was received wherein it was opined that “the person who wrote the red enclosed writings & BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS Signature stamped and marked S 1 to S 14 & A 1 to A 11 also wrote the red enclosed writings & signature similarly stamped and marked Q1 & Q1 1”. Thereby the claim of the accused that he had not received Rs. 5 crores and the questioned handwriting doesn‟t belong to him was found to be incorrect. That the applicants hatched criminal conspiracy to cheat the complainant and had knowingly conceded from the complainant the fact about their ongoing dispute with M s CHD Elite Realtech Pvt. Ltd with a mala fide intent that till date no license has been granted to the accused on the land in question and the amount paid by the complainant is yet to be recovered. That the applicants have held facts and have failed to cooperate during investigation and hence custodial interrogation of the accused is required. In light of the aforesaid there is grave apprehension that the applicants might jump and abscond and hence it is submitted that the bail applications be rejected. 7. Mr. Amit Khanna learned counsel appearing on behalf of the complainant vehemently opposed the instant applications and stated that the applications be rejected at the very outset. Learned counsel submitted that the accused had dishonest intentions since the beginning of the transaction and had defrauded the complainant wilfully and further with the same mens rea the applicants had concealed and kept the complainant company in dark about the execution of the said MOU with CHD Elite Realtech. Learned counsel also stated the accused have BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS misappropriated and mis utilized the monies of the complainant company and caused wrongful loss to the complainant. Learned counsel submitted that the offence thus committed by the applicants is grave in nature and hence the applicants do not merit the indulgence of this Court by granting anticipatory bail and therefore the petitions be dismissed. Heard learned counsels appearing on behalf of parties and perused the record. Before analysing the application for anticipatory bail it is essential to take note of the approach that is expected from the High Courts to be adopted while dealing with such applications as observed by the Hon‟ble Supreme Court in the case of Arnab Manoranjan Goswami v. State of Maharashtra2 SCC 427: “More than four decades ago in a celebrated judgment in State of Rajasthan v. Balchand 4 SCC 308 : 1977 SCC Cri) 594] Krishna Iyer J. pithily reminded us that the basic rule of our criminal justice system is “bail not jail” 8 SCC 21: 2005 SCC1960 and Sanjay Chandra v. CBI 1 SCC 40 : 1 SCC 26 : 2 SCC 397]. The High Courts and courts in the district judiciary of India must enforce this principle in practice and not forego that duty leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary which provides the first point of interface to the citizen. Our BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS the district judiciary is wrongly referred to as the “subordinate judiciary”. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well when High Courts do not grant bail or anticipatory bail in cases falling within law. The the parameters of consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground—in the jails and police stations where human dignity has no protector. As Judges we would do well to remind ourselves that it is through the instrumentality of bail that our preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the “solemn expression of the humaneness of the justice the primary system”. Tasked as we are with responsibility of preserving the liberty of all citizens we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.” justice system s primordial 10. The Constitution Bench judgment in the case of Gurubaksh Singh Sibbia v. State of Punjab 2 SCC 565 has been serving as an encyclopedia for the cases in relation to anticipatory bail. Therein the court also called for a similar approach when it observed: BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS “26. We find a great deal of substance in Mr Tarkunde s submission that since denial of bail amounts to deprivation of personal liberty the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual who is entitled to the benefit of the presumption of innocence since he is not on the date of his application for anticipatory bail convicted of the offence in respect of which he seeks bail. An over generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved not jettisoned.” 11. The Hon‟ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra1 SCC 694 concerning grant of anticipatory bail after exhaustively analysing the rights under Article 21 held as under: “A great ignominy humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre conviction stage or post conviction 12. A three judge bench of the Hon‟ble Supreme Court in the case of Nathu Singh v. State of U.P. 6 SCC 64 has called for a liberal BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS interpretation in the cases relating to grant of anticipatory bail when it “19. At first blush while this submission appears to be attractive we are of the opinion that such an analysis of the provision is incomplete. It is no longer res integra that any interpretation of the provisions of Section 438 CrPC has to take into consideration the fact that the grant or rejection of an application under Section 438 CrPC has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally and considering its beneficial nature the courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking 13. Since the genesis of the statutory right to anticipatory bail is traced under Article 21 of the Constitution it is essential to understand the true import of the same. The Hon‟ble Supreme Court has held that such right to life does not merely mean animal like existence but includes wider connotations to make the life meaningful. Going a step further anticipatory bail has been enshrined as a statutory right as well under Section 438 of the Code. Thus there is no doubt that the provision merits being invoked in appropriate cases more so in light of the general bail jurisprudence wherein bail is a matter of right and „bail not jail is the normal rule‟. BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS 14. It is equally important to take into consideration the factors that the Court must keep in purview while deciding the question or refusing anticipatory bail. In a recent judgement the Constitutional bench of the Hon‟ble Supreme Court had the occasion to consider some important aspects of anticipatory bail in the case of Sushila Aggarwal v. State NCT of Delhi)5 SCC 1. The Hon‟ble Court therein analysed the concept of anticipatory bail at great length and held as under: investigation or intimidating witnesses) “92.3 Nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting relief in terms of time or upon filing of FIR or recording of statement of any witness by the police during investigation or inquiry etc. While considering an application the court has to consider the nature of the offence the role of the person the likelihood of his influencing the course tampering with evidence likelihood of fleeing justice etc. The courts would be justified — and ought to impose conditions spelt out in Section 437(3) CrPCare dependent on facts of the case and subject to the discretion of the court.” In the instant case since forgery has been alleged the nature of evidence is substantially documentary in nature and is already in the custody of the investigative agency. Secondly despite five years having been passed since the date of the FIR no chargesheet has been filed till date. Thirdly as per the Order dated 21st December 2018 one of the applicants Sangeeta Bhatia had been granted interim protection and there is no allegation that the applicant has misused the interim protection granted. Fourthly the applicants are ready and willing to offer a security by depositing the title deeds of the said land in lieu of the cash deposit of Rs.2.50 crores. Lastly the State has not denied the factum that the Applicants have clean antecedents. 16. Thus in light of the aforesaid the applicants are entitled to indulgence of this Court and this Court is inclined to grant anticipatory bail to the applicants as being prayed for. In view of the aforementioned facts circumstances analysis and reasoning as well as keeping in mind the legal position and the proposal made by the applicants this Court is persuaded to allow the instant anticipatory bail applications bearing number 3067 2018 1116 2019 and 1119 2019. BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS 18. The applicants in compliance with the proposal made by the learned counsel in the oral submissions are directed to deposit the title deeds of the said land as a security in lieu of the amount in question with the Complainant. It is accordingly directed that in the event of arrest the applicants namely Sangeeta Bhatia Laksh Bhatia and Pawan Bhatia in anticipatory bail applications bearing no. 3067 2018 1116 2019 and 1119 2019 respectively shall be admitted to bail by the Investigating Officer on furnishing a personal bond of Rs. 50 000 each with one surety of like amount for each applicant to the satisfaction of the Investigating Officer subject to following conditions applicable on each Applicant individually: a) the Applicant shall surrender his her passport if any to the Investigating Officer and shall under no circumstances leave India without prior permission of the Court concerned b) the Applicant shall cooperate in the investigation and appear before the Investigating Officer of the case as and when required c) the Applicant shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS d) the Applicant shall provide his her mobile number(s) to the Investigating Officer and keep it operational at all times e) the Applicant shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer and f) In case of change of residential address and or mobile number the Applicant shall intimate the same to the Investigating Officer Court concerned by way of an affidavit. 20. The applications stand disposed of in the above terms. 21. Pending applications if any also stand disposed of. It is made clear that the observations made herein while disposing of the instant bail applications shall have no bearing whatsoever on the merits of the case during trial. 23. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) February 14 2021 BAIL APPLN NO. 3067 2018 & CONNECTED MATTERS

The Courts can declare a contract vague, unenforceable and hence void even if it was beyond pleadings: High Court of Himachal Pradesh

Vague and unspecific agreements will not be legally enforceable since there is no consensus ad idem. Consequently, if the courts provide relief under Section 9 of the Specific Relief Act, 1963 by dismissing the suit even if it was beyond what was pleaded, such relief is a discretionary and equitable relief, thus is legally sustainable. This auspicious judgment was passed by the High Court of Himachal Pradesh in the matter of RAM LAL V. OM PARKASH & ANR. [REGULAR SECOND APPEAL NO. 87 OF 2009] by Honourable Justice Jyotsna Rewal Dua. The suit was filed by the plaintiff for possession through the specific performance of an agreement by way of execution of sale deed. The parties to the suit had executed an agreement to sell, the consideration of sale was partly paid by the plaintiff yet the defendants did not execute the sale deed. Consequently, the plaintiff filed for recovery. The defendants admitted their joint ownership and possession over the suit land but denied execution of the agreement in question on grounds of it being a forged document not bearing their signatures. Additionally, they argued that the plaintiff provided money as a part of a Committee which was duly paid back as a result of which Learned Courts held that, “The agreement was vague document and incapable of enforcement since the plaintiff could not prove the execution of this agreement in accordance with the law.” Hence, the aggrieved plaintiff took his third chance by way of an instant regular second appeal. The High Court observed that the document was in Punjabi and ordered for it to be translated into either Hindi/English since it was a material document around which the entire case revolved. The Court then deliberated upon the questions of law as to whether specific relief can be granted under Section 9 of the Specific Relief Act, 1963. The Court relied on the case Pawan Kumar Dutt and Another Vs. Shakuntala Devi and Others (2010) 15 SCC 601 to state that, “suit for specific performance could not be decreed for want of certainty as to the description of the suit property.” As per the material on record, it was observed that “the agreement was indeed vague since neither the land in question nor the house involved has been identified in the agreement.”. Additionally, the parties had no consensus ad idem as to the area of land being sold. The Court held that “All material aspects which needed to be reflected with certainty have been left in the realms of speculation. Neither the agreement gives out a clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted.” Additionally, the court in response to the plaintiff’s argument of unlawful dismissal of the suit by the lower court since grounds of dismissal was beyond pleading, relied on the Apex Courts judgement in Keshav Lal Lallubhai Patel Vs. Lalbhai Tribumlal Mills AIR 1958 SC 512 to state that, “plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal court to allow such a plea to be raised under Order 41 Rule 2 of the Code of Civil Procedure. If, on fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty.” Also, grounds for granting specific relief are discretionary and equitable relief as iterated by the SC in 2019 (3) SCC 704 titled Kamal Kumar Vs. Premlata Joshi & Others, hence, “when it is unclear whether the agreement was executed in respect to the land or was in regarding sale of the house and also the terms of the agreement were unclear to one party due to language barrier the court will not evaluate the  validity of signature by seeking expert opinion since the plaintiff miserably failed to prove due execution of the agreement.”

Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 809 Reserved on: 26.03.2021 Decided on: 01.04.2021Ram lal…..Appellant plaintiff VersusOm Parkash & Anr......Respondents CoramMs. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 Yes.For the appellant: Mr. Y.P. Sood Advocate. For the respondents: Mr. Dheeraj K. Vashisht and Mr. ShubhamSood Advocates. Jyotsna Rewal Dua J Plaintiff has assailed the concurrent judgments and decreespassed by the learned Courts below dismissing his suit.2.Facts:2(i)Suit was filed by the plaintiff for possession through specificperformance of an agreement by way of execution of sale deed of landmeasuring 0 9 marlas out of total land measuring 3 kanal 4 marla bearingKhasra No. 1467 comprised in Khewat No. 30 min Khatauni No. 82 min situated in village Kangar Sub Tehsil Haroli Tehsil and District Una H.P.The foundational facts as set out in the plaint were that the plaintiff anddefendants had executed an agreement to sell in respect to the abovedescribed land on 6.11.1992. Out of the total agreed sale consideration ofRs. 40 000 an amount of Rs.30 000 was paid by the plaintiff to the1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 03 04 HCHP 2defendants. Despite stipulation in the agreement that sale deed will beexecuted on or before 10.11.1993 the defendants did not execute the saledeed. Plaintiff has been ready and willing to perform his part of thecontract. Hence the civil suit with the above prayer was filed.Alternatively plaintiff prayed for recovery of Rs. 60 000 2(ii)Defendants though admitted their joint ownership andpossession over the suit land but denied execution of the agreement inquestion. Their stand was that the agreement dated 6.11.1992 put forth bythe plaintiff was a forged document which did not even bear theirsignatures. They also pleaded that they alongwith plaintiff were membersof a Committee in which the plaintiff had contributed Rs.28 000 . TheCommittee failed and plaintiff started demanding his money back from thedefendants. Defendants expressed their inability to pay the amount in lumpsum. In this regard plaintiff also moved an application before Police PostHaroli. Eventually defendants paid Rs.30 000 to the plaintiff on receiptsagainst due amount of Rs.28 000 .2(iii)After considering the pleadings and the evidence adduced bythe parties both the learned Courts below concurrently held that theagreement dated 6.11.1992 was a vague document and incapable ofenforcement. It was also held that the plaintiff could not prove theexecution of this agreement in accordance with law. Aggrieved theplaintiff is now taking his third chance by way of instant regular secondappeal. Hig h C o urt of H.P on 03 04 HCHP 33(i).This second appeal was admitted on 6.3.2009 on followingsubstantial questions of law: “1. Whether the courts below have misread and misinterpreted theagreement to sell Exhibit PW 1 A inasmuch as it clearly identifies theproperty subject matter of agreement to sell and the findings thusrecorded are vitiated 2.Whether the courts below were wrong in dismissing the suit forspecific performance by holding it to be hit of Section 9 of the SpecificRelief Act and Section 29 of the Indian Contract Act in the absence ofany such plea raised by the respondents in the written statement and thefindings thus recorded are beyond pleadings 3.Whether the courts below have misread and mis appreciated thestatements of PW 1 and PW 2 and the findings thus recorded arevitiated ”3(ii).During hearing of the instant appeal on 4.3.2021 it wasnoticed that the original agreement dated 6.11.1992waswritten in Punjabi script. Its translation either in Hindi or in English wasnot available in the records of learned Courts below. Since it was amaterial document around which entire case revolved therefore on4.3.2021 the Registry was directed to get this document translated inHindi English from the Official Translator. The English translation of thisagreementhas now been supplied by the Official Translator.The contents of the agreement to sell dated 6.11.19992astranslated by the Official Translator reads as under: “That we Om Parkash and Malkiat Singh Sons of Mansa Ram R oVillage Kangar Tehsil Haroli District Una Himachal Pradesh presently residing at Delhi road Nandpur Tehsil and DistrictLudhiana do hereby agree to sell a ‘Kutcha’ house under ourowernship and possession compromised in an area measuring around5 biswa at Kangar Tehsil Haroli District Una in favour of VendeeRam Lal S o Banta Singh S o Nandu Ram R o Kangar Tehsil Haroli District Una presently residing at Delhi Road Sahnewal Tehsil andDistrict Ludhiana for the consideration of Rs.40 000 half of which is Rs.15 000 in cash as earnest money weagree to get the same deed registered by appearing before the Sub Hig h C o urt of H.P on 03 04 HCHP 4Registrar Haroli District Una on or before 10.11.1993 and shallreceive the remaining amount accordingly. There shall be no objection.Revenue papers regarding Khasra Number etc. of the house shall beproduced at the time of Registration. Failing which we shall paydouble the amount of earnest money and in case the vendee does notexecute the sale agreement the earnest money shall stand forfeited.This agreement has been reduced into writing for the purpose of record.Dated 6.11.1992.Executants VendeeWitnessSdSdSdthe written statement dated17.8.1996 in his examination in chief by way of affidavit dated9.4.2003 andin an another agreement dated 26.8.1992 Ext. DW1 Awith respect to return of Rs.28 000 to the plaintiff. Whereas in thedisputed agreementhis signatures appear as ‘Malkit Singh’. Hig h C o urt of H.P on 03 04 HCHP 65.Observations:5(a)Questions of law No.1:5(a)(i)As per Section 29 of the Indian Contract Act 1872 ‘agreements’ the meaning of which is not certain or capable of beingmade certain are void. Section 9 of the Specific Relief Act 1963 entitlesthe defendant to plead by way of defence any ground available to himunder law relating to the contracts where relief of specific performance ofcontract is claimed under Chapter II of the Act. Before adverting toquestion of law it would be appropriate to first notice the precedents inrespect of specific performance of valid enforceable contracts as also inrespect of defective contracts. 5(a)(ii)Hon’ble Apex Court in4 SCC 352 titledSatish Kumar Vs Karan Singh & Anr. held that the jurisdiction to orderspecific performance of contract is based on the existence of a valid andenforceable contract. Where a valid and enforceable contract has not beenmade the Court will not make a contract for the parties. Specificperformance will not be ordered if the contract itself suffers from somedefect which makes it invalid or unenforceable. The discretion of the Courtwill not be there even though the contract is otherwise valid andenforceable. In this regard it is apposite to extract relevant paragraphs ofthis judgment: “8 It is well settled that the jurisdiction to order specific performance ofcontract is based on the existence of a valid and enforceable contract.Where a valid and enforceable contract has not been made the Courtwill not make a contract for them. Specific performance will not be Hig h C o urt of H.P on 03 04 HCHP 7ordered if the contract itself suffers from some defect which makes thecontract invalid or unenforceable. The discretion of the Court will notbe there even though the contract is otherwise valid and enforceable.9 This Court in Mayawanti vs. Kaushalya Devi 1990 3 SCC 1 heldthus: "8. In a case of specific performance it is settled law and indeed itcannot be doubted that the jurisdiction to order specificperformance of a contract is based on the existence of a valid andenforceable contract.The Law of Contract is based on the ideal offreedom of contract and it provides the limiting principles withinwhich the parties are free to make their own contracts. Where avalid and enforceable contract has not been made the court will notmake a contract for them. Specific performance will not be orderedif the contract itself suffers from some defect which makes thecontract invalid or unenforceable. The discretion of the court will bethere even though the contract is otherwise valid and enforceableand it can pass a decree of specific performance even before therehas been any breach of the contract. It is therefore necessary firstto see whether there has been a valid and enforceable contract andthen to see the nature and obligation arising out of it. The contractbeing the foundation of the obligation the order of specificperformance is to enforce that obligation."10 Exercise of discretionary power under Section 20 of the SpecificRelief Act for granting a decree this Court in the case ofParakunnan Veetill Josephs Son Mathew vs. Nedumbara KuruivilasSon and others 1987 AIR(SC) 2328 observed: "14. Section 20 of the Specific Relief Act 1963 preservesjudicial discretion of courts as to decreeing specificperformance. The court should meticulously consider all factsand circumstances of the case. The court is not bound togrant specific performance merely because it is lawful to doso. The motive behind the litigation should also enter into thejudicial verdict. The court should take care to see that it is notused as an instrument of oppression to have an unfairadvantage to the plaintiff. The High Court has failed toconsider the motive with which Varghese instituted the suit. Itwas instituted because Kuruvila could not get the estate andMathew was not prepared to part with it. The sheet anchor ofthe suit by Varghese is the agreement for sale Exhibit A 1.Since Chettiar had waived his rights thereunder Varghese asan assignee could not get a better right to enforce thatagreement. He is therefore not entitled to a decree forspecific performance.5(a)(iii)(2010) 15 SCC 601 titled Pawan Kumar Dutt andAnother Vs. Shakuntala Devi and Others was a case where the TrialCourt held that the suit for specific performance could not be decreed for Hig h C o urt of H.P on 03 04 HCHP 8want of certainty as to description of suit property. The First Appeal filedby the plaintiff was also dismissed. The High Court did not find any validground to take a different view on the concurrent findings of fact recordedby both the Courts below. The Hon’ble Apex Court held that ‘Courts arenot expected to pass a decree which is not capable of enforcement incourts of law’. If a decree is to be granted for specific performance without identification of the suit property it will not be possible to enforcesuch a decree. The relevant para from the judgment which also notices theagreement specification is extracted hereinafter: “7.But the position in the present case is different that a portion out ofthe total larger extent was agreed to be sold but without specificationof the area agreed to be sold. It is clear from the suit agreement that noboundaries of the suit property which was sold are specified in theagreement. It is not clear from what point the area is to be measured. Itis also not clear that these 4 bighas 2 biswas is a portion of the landsituated in the middle of the total land or in one portion or at theextreme end or at a particular place in other words there is no clearidentity of the property agreed to be sold. The Courts are not expectedto pass a decree which is not capable of enforcement in the courts oflaw. If the argument of the learned counsel for the appellants is to beaccepted and if a decree is to be granted for specific performance without identification of the suit property it will not be possible toenforce such a decree.”5(a)(iv)In the instant case agreement to sell refers to a ‘Kutchahouse’ allegedly owned and possessed by the defendants in an area ofaround 5 biswa at Kangar Tehsil Haroli District Una with further riderthat revenue papers regarding Khasra number etc. of the house would beproduced at the time of registration of sale deed. Neither the land inquestion nor the house involved has been identified in the agreement. Nokhasra number finds mentioned in the agreement. The extent of the areaalleged to have been sold by the defendants in the agreement is around 5 Hig h C o urt of H.P on 03 04 HCHP 9biswa whereas the plaint talks about land measuring 0 9 marlas out oftotal land measuring 3 kanals and 4 marlas comprised in specific khasranumbers. Alongwith plaint a site plan depicting the land referred to in theplaint has also been appended. The plaint is definitely an improvementover the agreement to sell in respect of identity of land house. Defendantsin their written statement have admitted their joint ownership & possessionover the suit land as well as of the house. By relying upon the revenuerecords they submit that they arejoint owners over the suit land alongwith others. It is further their case thatthey have never executed the agreement in question. Be that as it may.The fact remains that the agreement to sell dated 6.11.1992 is vague. Itdoes not reflect clear intention of the executants as to what was beingagreed to be sold under the agreement. All material aspects which neededto be reflected with certainity have been left in the realms of speculation.Neither the agreement gives out clear identity of the land nor it spells outthe boundaries. Even the area of the house subject matter of theagreement is not correctly recorded therein. No ascertainable ordeterminative intention can be deciphered from this agreement. Such anagreement to sell is not capable of enforcement. Its specific performancecannot be granted. The judgments cited by learned counsel are based uponfacts of individual cases. Substantial question of law No.1 answered accordingly. Hig h C o urt of H.P on 03 04 HCHP 105(b) Question of Law No.2: Section 29 of Indian Contract Act entitles a defendant toavoid an agreement if the same is void. Also the defendant is entitled totake the defence of vagueness & void nature of the agreement in order toavoid its specific performance under Section 9 of the Specific Relief Act.Such a defence would essentially revolve around frame of the agreementand its logical interpretation in the facts of the case. Agreement beingvague & therefore un enforceable is a plea which can be raised by thedefendants even without specifically expressing it in the written statement.In 2019Scale 131 titled Tilak Raj Bakshi Vs. Avinash ChandSharmathrough LRs & others the Apex Court was inter aliaconsidering two questions viz i) whether the High Court was right in without even a plea holding that the family settlement is vague andunenforceable and void ii) Whether the High Court was right in holdingthat the Courts could not exercise discretion under Section 20 of theSpecific Relief Act 1963 as the contract is not specifically enforceable.While answering the question the Court reiterated the observation of ApexCourt in AIR 1958 SC 512 titled Keshav Lal Lallubhai Patel Vs. LalbhaiTribumlal Mills: 20. The question is not res integra. A Bench of three learned Judges ofthis Court considered the very same question in Keshavlal LallubhaiPatel Vs. LalBhai Trikumlal Mills Lts held as follows:“10. There is one more point which must be considered. It wasstrongly urged before us by the appellants that in the trialcourt no plea had been taken by the respondent that theagreement for the extension of time was vague and uncertain. Hig h C o urt of H.P on 03 04 HCHP 11No such plea appears to have been taken even in the groundsof appeal preferred by the respondent in the High Court atBombay but apparently the plea was allowed to be raised inthe High Court and the appellants took no objection to it atthat stage. It cannot be said that it was not open to the HighCourt to allow such a plea to be raised even for the first timein appeal. After all the plea raised is a plea of law basedsolely upon the construction of the letter which is the basis ofthe case for the extension of time for the performance of thecontract and so it was competent to the appeal court to allowsuch a plea to be raised under Order 41 Rule 2 of the Code ofCivil Procedure. If on a fair construction the conditionmentioned in the document is held to be vague or uncertain no evidence can be admitted to remove the said vagueness oruncertainty. The provisions of Section 93 of the IndianEvidence Act are clear on this point. It is the language of thedocument alone that will decide the question. It would not beopen to the parties or to the court to attempt to remove thedefect of vagueness or uncertainty by relying upon anyextrinsic evidence. Such an attempt would really mean 4 AIR1958 SC 512 the making of a new contract between theparties. That is why we do not think that the appellants cannow effectively raise the point that the plea of vaguenessshould not have been entertained in the High Court.”(Emphasis supplied)21. Therefore the mere fact that a plea is not taken that the clause inquestion is vague and hence unenforceable and void will not stand inthe way of the Appellate Court looking into the contract and if on itsterms it finds it to be vague and unenforceable it can be so held.”Reference in this regard can also be made to AIR 1990Kerala 198 titled K.G. Balakrishnan J. titled Kandamath CineEnterprisesLtd. Vs. John Philipose. Relevant paragraphs whereofare extracted as under: “6. The next contention urged by the appellant s counsel is that theterms of Ext. Al are vague and uncertain and therefore it is notenforceable in view of Section 29 of the Contract Act. The contention ofthe appellant is that the description of the property to be sold is notmade clear and it is so vague and uncertain. At the outset I may pointout that this plea was not raised before the Court below. No such pleawas raised in the written statement. Moreover the defendant companyreceived Rs. 10 000 as per Ext. Al receipt and therefore received theentire balance consideration as evidenced by Ext.Al endorsement andthe two cheques issued in favour of the defendant. At no point of timethe defendant expressed the view that the terms of Ext Al was vague anduncertain and hence unenforceable. However I am of the view that theappellant is entitled to raise this plea since it is a question of law. Hig h C o urt of H.P on 03 04 HCHP 127. The plea that a particular contract is void for uncertainty underSection 29 of the Contract Act is a question of law and if the terms ofthe contract are vague and uncertain the contract itself would be voidand unenforceable under Section 29 of the Contract Act and that will gointo the root of the matter and therefore it is a plea that could be raisedeven at the appellate stage. This view has been exemplified byauthorities in Phuljhari Devi v. Mithai Lal AIR 1971 All 494 Keshavalal v. Lalbhai T. Mills Ltd. AIR 1958 SC 512 at page 517.8. The learned counsel for the appellant further contended that if theterms of the contract are uncertain no evidence can be admitted toremove the said vagueness or uncertainty in view of Section 93 of theEvidence Act. It is true that if any of the terms of the document is clearlyuncertain and incapable of being made certain it may not be open to theparties to attempt to remove that vagueness or uncertainly by adducingother evidence. The learned counsel for the appellant points out that aCommission was taken out in this case to identify the plaintiff s propertyand the Commissioner prepared Ext. C2(a) plan and he has identifiedthe property as plot "CXJK". The Commissioner identified the |plot withreference to Ext. Al agreement. It is incorrect to say that theCommission was taken out to identify the property as the recital in Ext.Al was too vague and uncertain. The entire 5 acres and 2 cents of landwas lying on the northern side of the public road leading to EngineeringCollege. There is a by lane on the western side of the property. Thisbylane is being used by people residing on the further north of thedefendant s property. It is an undisputed fact that the main public road ison the southern side of the property. When the parties described theproperty as "1 acre of front land" it clearly means 1 acre of the propertylying on the northern side of the Engineering College road. It is difficultto interpret that 1 acre of front land intended by the parties was on theextreme northern side of the entire property or the property lying on theeast of the western pathway. From the lie of the property and theexistence of the southern public road it is clear and certain that the 1acre of land intended to be sold was "CXJK" in Ext. C2(a) plan. It isimportant to note that the defendant on the date of the agreementreceived Rupees 10 000 and after two months he received the balanceconsideration. Thus the defendant accepted several payments towardsthe agreement without any protest and he acted on the agreement. At nopoint of time the defendant contended that the terms of the agreementare vague and uncertain and the plaintiff is not entitled to enforce theagreement. PW1 the father of the plaintiff who acted on behalf of theplaintiff and DW1 the Managing Director of the defendant company arewell educated and they knew each other for a number of years.According to P. W.I he visited the property several times in the companyof DW1 and fully satisfied about the identity of the property”.Question of law No.2 is answered accordingly. Hig h C o urt of H.P on 03 04 HCHP 135(c)Question of law No.3 In 2019SCC 704 titled Kamal Kumar Vs. PremlataJoshi & Others the Hon’ble Apex Court held that the grant of specificperformance is a discretionary and equitable relief and laid down followingmaterial questions required to be gone into for grant of relief of specificperformance “7.1.First whether there exists a valid and concludedcontract between the parties for sale purchase of the suit property 7.2.Second whether the plaintiff has been ready andwilling to perform his part of contract and whether he is still ready andwilling to perform his part as mentioned in the contract 7.3Third whether the plaintiff has in fact performed hispart of the contract and if so how and to what extent and in whatmanner he has performed and whether such performance was inconformity with the terms of the contract 7.4.Fourth whether it will be equitable to grant the reliefof specific performance to the plaintiff against the defendant in relationto suit property or it will cause any kind of hardship to the defendant and if so how and in what manner and the extent if such relief is eventuallygranted to the plaintiff 7.5.Lastly whether the plaintiff is entitled for grant of anyother alternative relief namely refund of earnest money etc. and if so on what grounds.”Defendants have denied executing the agreement dated 6.11.1992. Theirstand is thatis a forged document which does not bear theirsignatures. With the assistance of learned counsel for the parties I havegone through the evidence on record. To prove this agreement plaintiffexamined three witnesses. PW 1 Mohd. Iqbal was not even clear as towhether the agreement was executed in respect to the land or was inregarding sale of house. He was also appears to be confused as to whetherhe knew Punjabi language or not. The agreement was scribed in Punjabi Hig h C o urt of H.P on 03 04 HCHP 14language. He stated that the stamp paper was brought by defendant No.2Om Prakash and the agreement was scribed by Mewa Singh at around 1.02P.M. at Dana Mandi on 6.11.1992. Agreement thereafter was read out byMewa Singh for the benefit of all. He himself did not read theagreement. His given version of residence of defendants at the time ofalleged execution of the agreement is at variance with the version of theother witnesses of the plaintiff. PW 2 Mewa Singh the scribe did notproduce the deed writer register. The stamp vendor was not examined bythe plaintiff. Defendant No.2 Malkit Singh while appearing inexamination in chief stated that Ext. PW1 A dated 6.11.1992 was aforged document and never executed by the defendants. This witness wasnot at all cross examined by the plaintiff in respect of the valid executionof the agreement. No suggestion was given to this witness by the plaintiffthat he had executed the agreement. Burden of proving due execution ofthe agreement was on the plaintiff which he failed to discharge. Under thecircumstances there was hardly any necessity for expert opinion aboutsignatures on the document. In this regard it is apposite to refer to AIR2016 Karnataka 192 titled Sayed Moinuddin Vs Md. Mehaboob Alamand others. Relevant paragraphs are extracted hereinafter: “11. So looking to this oral evidence of plaintiff as well as the witnesseson the side of the plaintiff which has been observed by the Trial Courtthat firstly the identity of the property is not clearly established as thereare no boundaries mentioned in any of three documents. Not only thateven with regard to exact property number there is no consistent andacceptable evidence on the side of the plaintiff. Looking to thedocuments produced by the plaintiff regarding number of the propertyold as well as new one. Therefore the Trial Court comes to theconclusion that the plaintiff failed to prove the agreements Ex.P 1 to P Hig h C o urt of H.P on 03 04 HCHP 153 with acceptable evidence. Accordingly the suit was dismissed. Whenthe matter taken up before the first Appellate Court the first AppellateCourt after re appreciating the materials on record it also comes to theconclusion that the dismissal of the suit is in accordance with law andno illegality has been committed by the Trial Court.13 When it is definite case of the plaintiff that agreement of sale isattested by the witnesses and witnesses have been examined before theTrial Court. The scribe of the document is also examined before theTrial Court and their evidence is appreciated by the Trial Court thequestion of sending the document for expert opinion does not arise atall. Getting opinion of the expert is when there are no means to provethe document then in that case as a last resort the Court has to referthe document for expert opinion and expert opinion it is opinionevidence. When there are direct witnesses to the documents i.e. attesting witnesses and the scribe of the document. When their evidenceis not acceptable and trustworthy the contention of the appellant beforethis Court cannot be accepted that it is to be sent for expert s opinion.No grounds in this Regular Second Appeal. Perusing the entirematerials placed on record I am of the opinion that no substantialquestion of law involved in this appeal. There is no merit in this appeal.Accordingly the appeal is dismissed in the admission stage itself.Consequently the application I.A. No.1 2015 is also dismissed.”Plaintiff miserably failed to prove due execution of theagreementis vague &void therefore not capable of being enforced. Plaintiff even otherwise hasfailed to prove its execution by the defendants in accordance with law. Nointerference in concurrent dismissal of plaintiff’s suit by the learned Courtsbelow is called for. Hence the appeal is dismissed. Pending application(s) if any also stand disposed of accordingly. Jyotsna Rewal Dua Judge 1st April 2021

In cases involving Tender Documents, Judicial Review is equivalent to Judicial Restraint: Supreme Court

While addressing a civil appeal to reverse the decision of the High Court regarding Tender call Notices, the Supreme Court held that where tender documents come into the picture the High court can intervene only when the decision is malafide and arbitrary. Otherwise, the judicial review becomes judicial restraint. This judgment was passed in the case of M/S Utkal Suppliers vs. M/S MAA Kanak Durga Enterprises & Ors. [C.A.No.1517-1518/2021] by a Double Bench consisting of Hon’ble Justice Rohinton Fali Nariman and Hon’ble Justice B.R. Gavai. 4 The present appeals arose out of a tender call notice [TCN] issued by Respondent no.4, by this TCN sealed tenders in a two-bid system were invited from registered diet preparation and catering firms, suppliers, etc. They also had to have a valid labour license and food license with a minimum of 3 years experience in preparation and distribution of therapeutic and non-therapeutic diet to the government or private health institution having a minimum of 200 beds for the year 2019-20. The clauses of the “Terms of Reference” attached to the TCN laid down the eligibility criteria, the right to reject a bid by the Hospital Administration, the right to Disqualification by the Medical Hospital, and General information to the bidder. Based on the aforesaid, four bids came- Appellant, Respondent no.1, no.5, and no.6.  respondent no.1 and no.6 were disqualified since they did not have a valid labour license. Bids were opened for Respondent no.5 and Appellant and appellant was the lowest bidder with an average cost of  Rs.82/- per patient, per day. Appellant and Respondent no.4 entered into an agreement for a period of one year while respondent no.4 filed a writ petition seeking the tender. After hearing both the parties to the case, the High Court observed that the tender given to the appellant was malafide, illegal, and contrary to the TCN. The Supreme Court after hearing both sides of the case observed that the authority concerned read its own TCN to refer to the license to be submitted by bidders as the labour license under the Contract Labour Act. The tender document was clear that the staff employed would be employed by the agency as contract labour and the agency being responsible to make alternative arrangements in cases where their staff goes on strike. The Supreme court held that from various decisions it had passed, it was clear that in these cases judicial review is equivalent to judicial restraint since the review is not of the decision but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. The Supreme Court held that the High Court overstepped the bounds of judicial review by second-guessing the requirement of a license under the contract labour act. When the contract labour Act’s applicability is extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government it is clear that this is not an inflexible requirement. Further, the decision of the concerned authority cannot be second-guessed unless it is arbitrary, perverse, or mala fide. The Supreme court observed that the High Court’s decision to characterize the action of accepting the Appellant’s tender as mala fide is itself open to question and held that no malafide has been made out in the facts of the case.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1517 1518 OF 2021 ARISING OUT OF SLPNO.4222 4223 OF 2021 M S UTKAL SUPPLIERS M S MAA KANAK DURGA ENTERPRISES & ORS JUDGMENT R.F. Nariman J These appeals arise out of a Tender Call Notice dated 30.12.2019 issued by Respondent No.4 viz. the Office of the Superintendent SCB Medical College and Hospital Cuttack. By this TCN sealed tenders in a two bid system are invited from eligible registered diet preparation and catering firms suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019 2020. In the “Terms of Reference” attached to the TCN clauses VI.3.3 and VI.3.9 are important and are set out hereunder “VI.3 Eligibility criteria xxx xxx xxx 3. The bidder should have a minimum of 3 years’ experience in diet preparation and its supply services in Govt. or Private Health Institutions only having minimum 200 no. of beds xxx xxx xxx 9. The bidder should have valid labour licenceof Labour Department.” Further under clause VI.13 the right to reject any bid is set out as “VI.13 Right to Accept or Reject the Bid The Hospital Administration reserves the right to accept or reject any bid and the bidding process and reject all such bids at any time prior to award of contract without showing any reason thereby.” Equally under clause VI.16 the administration of the SCB Medical College and Hospital reserves under its sole discretion to disqualify any bid document if any of the documents enumerated in the said clause have not been submitted by the bidder. Clause VI.16(f) reads as follows: The Administration of the SCB Medical College Hospital seeking this bid reserves under its sole discretion to disqualify any bid document if the following documents have not submitted by the bidder xxx xxx xxx f) Labour License from competent authority” Under clause VI.20 sub clausestates: “VI.20 General Information to Bidder xxx xxx xxx 6. The agency would recruit required number of staff for cooking and serving so that diet can be supplied to the indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively.” Pursuant to the aforesaid four bids were received by the Tender Committee from the Appellant Respondent no.1 Respondent no.5 and Respondent no.6. Vide the Technical Committee meeting dated 17.02.2020 Respondent no.1 and Respondent no.6 were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence i.e. a contract labour licence from the competent authority as per the TCN requirement. The Appellant and Respondent no.5 were shortlisted for opening of financial bids. At this stage Respondent no.1 filed a writ petition on 19.02.2020 apprehending that it may be disqualified. This writ petition was dismissed as being premature on 20.02.2020. On 24.02.2020 the Tender Committee opened the financial bids of the Appellant and Respondent no.5 and found the Appellant to be the lowest bidder quoting an average cost of Rs.82 per patient per day. Meanwhile Respondent no.1 filed a writ petition dated 13.03.2020 praying that the Tender Committee proceedings be set aside and that Respondent no.1 be awarded the tender. By a work order dated 27.11.2020 the Appellant was awarded the tender at the approved rate. Pursuant thereto an agreement dated 27.11.2020 was entered into between the Appellant and Respondent no.4 for a period of one year. The High Court by the impugned judgment dated 23.03.2021 referred to the facts and thereafter held: “9. As mentioned above Clause 9 of the eligibility criteria is candid and clear requiring valid license of Labour Department. The said stipulation never mandates the license to be issued under the Contract Labour Act 1970. In the wake of the purpose which is to supply diet therapeutic and non therapeutic to the patients to the hospital we fail to concede to the submissions of requirement of labour license under the Contract Labour Regulation and Abolition) Act 1970. Rather the submission of the Petitioner that the same is required under the Odisha Shops and Commercial Establishments Act appears more acceptable. Therefore the contention of the Opposite Parties requiring the labour license under the Contract Labour Regulation and Abolition) Act 1970 does not seem justified in view of the stipulation made in the TCN. When the submission of labour licenseby the Petitioner under the Odisha Shops and Commercial Establishments Act is not disputed in our considered opinion the same satisfies the requirement sought for at Clause 9 10. Coming to the other shortfall as contended by the Opposite Parties regarding lack of three years’ experience in terms of Clause 3 of the eligibility criteria the admitted case of the parties are that the Petitioner has submitted the certificate issued by All India Institute of Medical Science Bhubaneswar relating to experience of providing patient dietary service in AIIMS since 8th August 2015 till 26th October 2018. This has been negatived by the Opposite Party No.3 by saying that the period of service of the Petitioner in AIIMS Bhubaneswar was not in chronological order and the certificate furnished by the Petitioner was having gap period of extension order from 6th August 2017 to 31st July 2018. Such analysis of Opposite Parties in our considered view is flimsy on the face of Annexure 9 which is the experience certificate issued in favour of the Petitioner by the AIIMS Bhubaneswar. Moreover the period of experience from 8th August 2015 to 26th October 2018 when exceeds three years period the same appears to be satisfying the requirement of Clause 3 without any xxx xxx xxx “13. It is admitted by the Opposite Parties that in the meantime during pendency of the writ petition Opposite Party No.5 has been issued with the work order on 27th November 2020 and he commenced with the supply of work with effect from 1st December 2020. This undoubtedly a development made during pendency of the writ petition and as such is governed by the principle of lis pendens and of course such development happened in the meantime is subject to final result of the writ petition 14. In view of the discussions made above as the bid of the Petitioner is found rejected illegally and contrary to the conditions of the TCN and the Petitioner specifically states that he was the lowest in the financial bid which the Opposite Parties has not replied cleverly the action of Opposite Parties in rejecting the bid of the Petitioner and selecting Opposite Party No.5 for the purpose to grant him the contract the same can safely be opined as mala fide action of the Opposite Parties. Accordingly the grant of contract in order dated 27th November 2020 under Annexure F 3 is quashed 15. In the result while quashing Annexure F 3 Opposite Party Nos.1 to 3 are directed to issue work order in favour of the Petitioner in the event his financial bid is found lower than Opposite Party No.5 to commence the supply work with effect from 1st March 2021. Needless to say that Opposite Party No.5 may continue his supply till 28th February 2021.” Shri Siddhartha Dave learned Senior Advocate appearing on behalf of the Appellant has argued that the High Court could not have second guessed the authority’s reading of its own tender and held that a registration certificate granted under the Orissa Shops and Commercial Establishments Act 1956could replace a labour licence under the Contract Labour Act 1970 “Contract Labour Act”] as required by the authority. He also argued that the minimum three years’ experience as per the requirement contained in clause VI.3.3 was missing as the experience certificate furnished by Respondent no.1 had a gap period from 06.08.2017 to 31.07.2018 which could not be made up and which was wrongly sought to be made up by the High Court. He also argued that it was perverse to hold that the action of the authority in granting the contract in favour of the Appellant was mala fide and further went on to argue that after quashing the work order in favour of the Appellant the High Court exceeded its jurisdiction in directing the authority to grant the work order to Respondent no.1. Shri Aditya Kumar Chaudhary learned counsel appearing on behalf of Respondent no.1 countered each of the aforesaid submissions He pointed out that under Section 1(4) of the Contract Labour Act the Act would apply only to an establishment in which 20 or more workmen are employed. As the TCN did not require that establishments firms etc that applied have 20 or more workmen it is obvious that it is not this Act that was the subject matter of clause VI.3.9 but it was the Orissa Act the registration certificate under which was produced to the satisfaction of the High Court by Respondent no.1. He also countered the argument that three years’ experience was not made out in the case of Respondent no.1 and referred to certain certificates issued by the All India Institute of Medical Sciences Bhubaneswar which made it clear that it had such experience. He argued that in the present case the High Court had not exceeded the parameters of judicial review as it found mala fides attributable to the authority and also argued that the contract was to be awarded to Respondent no.1 only if it was found that its financial bid was lower than that of the Appellant. 10. Having heard learned counsel appearing on behalf of the Appellant and Respondent no.1 what is clear is that the authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act. This is also clear from a reading of the tender document as a whole and in particular clauses VI.20.6 VI.20.20 and VI.20.21 which read as follows: “VI.20 General Information to Bidder xxx xxx xxx 6. The agency would recruit required number of staff for cooking and serving so that the diet can be supplied to indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively xxx xxx xxx 20. The behaviour of the staff of the agency towards the patients attendants should be conducive and disciplinary action would be taken by the Hospital Administration against the staff of the said agency violating the behavioural norm in consultation with the concerned agency 21. The agency would be responsible to make alternative arrangements in cases of situations such as staff strike local strikeetc. ensuring that the patients get diet in the appropriate time.” Sub clauses and in particular make it clear that the staff employed would be employed by the agency as contract labour the agency being responsible to make alternative arrangements in cases where their staff goes on strike. 11. This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. This has clearly been held in the celebrated case of Tata Cellular v. Union of India 6 SCC 651 paragraph 94 of which states as follows: “94. The principles deducible from the above are 1) The modern trend points to judicial restraint in The court does not sit as a court of appeal but merely reviews the manner in which the decision 3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible 4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not such decisions are made qualitatively by 5) The Government must have freedom of contract In other words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However the decision must not only be tested by the application of Wednesbury principle of reasonablenessbut must be free from arbitrariness not affected by bias or actuated by 6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure xxx xxx xxx” 12. Equally this Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. 16 SCC 818has laid down: “14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India3 SCC 489] was decided almost 40 years ago namely that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked 15. We may add that the owner or the employer of a project having authored the tender documents is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation This view of the law has been subsequently followed repeatedly see Montecarlo Ltd. v. NTPC Ltd. 15 SCC 272Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd. 14 SCC 81and State of Madhya Pradesh v U.P. State Bridge Corporation Ltd. 2020 SCC OnLine SC 1001 “15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335 under the heading “Deference to authority’s interpretation” this Court stated “51. Lastly we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while 52. In the present facts it is clear that BCCL and India have laid recourse to Clauses of the NIT whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents is better placed to appreciate their requirements and interpret them. 16 SCC 818 53. The High Court ought to have deferred to this understanding unless it was patently perverse or mala fide. Given how BCCL s interpretation of these clauses was plausible and not absurd solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed emphasis in original 16. Further in the recent judgment in Silppi Constructions Contractors v. Union of India 2019 SCC OnLine SC 1133 this Court held as follows contract “20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution the need for overwhelming public interest to justify judicial intervention in matters of the state instrumentalities the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable the court does not sit like a court of appeal over the appropriate authority the court must realise that the authority floating the tender is the best judge of its requirements and therefore the court s interference should be involving minimal. The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted The courts will only interfere to prevent arbitrariness irrationality bias mala fides or perversity. With this approach in mind we shall deal with the present case.” emphasis in original 17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the N.I.T. For this reason the Division Bench’s conclusion that JK Roadways was wrongly declared to be ineligible is set aside.” 14. The High Court has not adverted to any of these decisions and in second guessing the authority’s requirement of a licence under the Contract Labour Act has clearly overstepped the bounds of judicial review in such matters. In any case a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department. Section 4 of the Orissa Act reads as follows “4. Registration of establishment.(1) Within the period specified in sub section the employer of every establishment shall send to the Inspector of the area concerned a statement in the prescribed form together with such fees as may be prescribed containing the name of the employer arid the manager if any the postal address of the establishment the name if any of the establishment the category of the establishment that is whether it be a shop commercial establishment hotel restaurant cafe boarding or eating house theatre or other place of public amusement of entertainment and such other particulars as may be prescribed 2) No adolescent shall be allowed to work in any employment for more than six hours in a day 3) In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong the Inspector shall refer the matter to the Chief Inspector who shall after such enquiry as may be prescribed decide the category of such establishment and his decision shall be final for the purpose of this Act. 4) Within thirty days from the date mentioned in Columnthe statement together with fees shall be sent to the Inspector under sub sectionexisting on the date on which this Act comes into force Date from which the period of 30 days to The date on which this Act comes into force The date on which the A reading of this Section would show that the registration of an establishment under the Orissa Act is to categorise the establishment as a shop commercial establishment hotel etc. and not for the purpose of issuing a labour licence which in the context of the present TCN can only be a labour licence under the Contract Labour Act. 15. The argument of Respondent no.1 with reference to Section 1(4) of Contract Labour Act is wholly misplaced. Section 1(4) of the said Act reads as follows: “1. Short title extent commencement and application.— xxx xxx xxx 4) It applies— a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen Provided that the appropriate Government may after giving not less than two months’ notice of its intention so to do by notification in the Official Gazette apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in The requirement of this Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso making it clear that this is not an inflexible requirement. In any case the acceptance of such argument would amount to second guessing the authority’s interpretation of its own TCN which as has been stated hereinabove cannot be so second guessed unless it is arbitrary perverse or mala fide 16. The High Court’s characterising the action of accepting the Appellant’s tender as mala fide is itself open to question. The plea of mala fide made in the writ petition reads as follows: “22. That in the meantime the petitioner ascertained that the tender inviting authorities have connived with the Opp Party No. 4 to 6 and it is also ascertained that Opp. Party No. 4 to 6 belong to one establishment and are supplying the same contract to the SCB so accordingly with a malafide intention both have connived and a pre planned attempt has been made to oust the petitioner on a flimsy ground. The entire exercise has been done by Opp. Party No. 3 to award the contract to Opp. Party No. 5 as they are still continuing the aforesaid work and the entire endeavour of the Opp Party No. 3 is to create some litigation so that the opposite parties can continue during pendency of the writ application.” This plea was answered by the authority in its counter affidavit filed before the High Court as follows: “15. That in reply to the averments made in paragraphs 22 to 25 of the writ petition it is humbly and respectfully submitted that the bidding process has been concluded in a transparent manner adhering to the required guidelines It is further stated that the petitioner failed to comply with two basic requirements under eligibility criteria stipulated in the tender conditions i.e.submission of valid Labour licence ii) submission of proper certificate of continuous three years’ experience Government Reputed Private Health Institution having minimum 200 bed strength. As a result the Tender Committee disqualified the bid of the petitioner It is further submitted that after thorough examination of the documents M s. Utkal Supplierscame out to be the L 1 bidder in the tender process and the same was sent to the higher authorities for detailed examination of technical and financial bids. SLPC being the competent authority as per F.D. Notification No.22393 Fdt.08.06.2012 after due preparation and supply in diet examination of records has recommended to place the work order with the L 1 bidder. Accordingly the work order has been issued in favour of the L 1 biddervide this office letter No. 23347 dated 27.11.2020 and the selected firm has taken up diet services work in the hospital w.e.f A reference to the aforesaid pleadings would also go to show that except for an incantation of the expression mala fide no mala fide has in fact been made out on the facts of this case. 17. The High Court’s judgment is consequently set aside and the appeals are allowed. The Appellant is to be put back within one week from the date of this judgment to complete performance under the agreement entered into between the Appellant and the authority on [ROHINTON FALI NARIMAN [B.R. GAVAI New Delhi April 09 2021

Government should be more stern in their COVID 19 protocols: Supreme Court

The government has officially declared COVID 19 as a disaster under the Disaster Management Act, 2005 and this has put the steps taken against the virus by the government under heavy scrutiny. A concerned citizen approached the Supreme Court by the way of a writ petition contending the steps taken against the spread of the COVID 19 are violative of the Right to Health under Article 21 of the constitution in the matter of Gurusimran Singh Narula V Union Of India & Anr, [Writ Petition (C) NO.560 OF 2020]. The petitioner argued that the spraying or fumigation of any kind of chemical disinfectants on human beings which was being done rampantly in various public places was not protecting against the virus and on the other hand was counterproductive and dangerous to human health without the approval of the relevant ministry is violative of Article 21. The Ultra Violet(UV) rays are being used on human body and various edible items like fruits and vegetables to protect from the virus which is again futile and dangerous. The petition was filed making the Ministry of Health the respondents. The respondent contended that under Section 10 of the Disaster Management Act, 2005, the National Executive Committee is empowered to give directions regarding measures to be taken by the concerned ministry and departments of the Government, State Governments and State Authorities in response to the threatening situation or disaster. To this, the respondent argued that it was the duty of the Ministry of Health to implement guidelines issues against use of such dangerous practices to protect the health of its citizens instead of leaving scope for practices like these. The Supreme Court in its single bench consisting of Justice Ashok Bhushan held, “States are taking all measures to contain the pandemic and all mitigating steps but the facts which have been brought on record in this writ petition indicate that in the present case, something more was required to be done by respondent No.1 apart from issuing advisory that use of disinfectant on human body is not recommended. When public authorities/ organizations were using disinfectants both chemical/organic on the human body and there are various studies to the effect that it may be harmful to the health and the body. Some more actions were required to remove the cloud of uncertainty and to regulate the use even if it was to either prevent such use or regulate the use so that health of citizens is amply protected.

This Writ petition filed in the public interest under Article 32 of the Constitution of India seeks disinfectants on human beings which is being done supposedly for protecting the human beings from the The World Health Organisation(WHO) declared novel coronavirus disease 2019 as a Pandemic on 11.03.2020. All countries disease and protect its citizens from Covid­19. On 29.03.2020 Ministry of Health and Family Welfare Government of India released guidelines on The scope as contained in the guidelines is to the Scope: This document aims to provide interim guidance about the environmental cleaning decontamination of common public places including offices in areas Coronavirus Disease 2019(COVID­19) is an acute respiratory disease caused by a in most instances through respiratory droplets direct contact with cases and surfaces objects. Though the virus survives on environmental surfaces for varied period of time it gets easily On 18.04.2020 Director General of Health Services EMR Division) Ministry of Health and Family Welfare people for Covid­19 arrangements. Even though in the above advisory spraying of individuals or groups was not recommended several bodies organizations started press release dated 23.4.2020 was issued by National Capital Laboratory(Council for Scientific and Industrial Research) which was joint press release by front­line health care professionals including paramedical staff police and employees providing essential services. Other public organizations also started using the walk way spray tunnels and other measures for disinfecting humans at various public This writ petition under Article 32 has been filed or any other appropriate writ direction or order a forthwith ban on the usage installation production advertisement of fumigation of chemical disinfectants for the purposes disinfecting human being or any other appropriate writ direction or order a forthwith ban on usage installation production advertisement of fumigation of organic disinfectants for the purposes disinfecting human beings iii. Issue a writ in the nature of Mandamus or any other appropriate writ advertisement of disinfection tunnels exposing human beings to ultraviolet rays orders as may be deemed necessary on the facts and in the circumstances of the relied the advisory dated 18.04.2020 and has also referred to press release dated 23.04.2020 issued by CSIR­NCL Pune­ICT Mumbai where tunnels for external body surface sanitization of personal walk was The petitioner s case in the writ petition is that although the Ministry of Health and Family Welfare Government of India has not approved the use of any self claimed organic or ayurvedic disinfectant for spraying or fumigation purposes nor approved any chemical disinfectants on human body but lot of organizations public authorities are using chemical disinfectants for spraying and fumigation. Several instances in the writ petition of public authorities installing disinfecting tunnel has been given in the been relied where it is clearly stated that spraying Quoting World Health Organization it is pleaded that the Ultraviolet should not be used to disinfect the hands and other areas of the skin Reference has also been made of advanced disinfectant tunnel developed jointly by Indian Institute of Technology Kanpur and Artificial Limb Manufacturing tunnels have also been referred to and relied by the petitioner. Certain materials where different experts have recommended use of UV light and disinfectant discordant note expressed by certain experts and This Court issue notice to respondent Nos. 1­3 on 10.08.2020. No notice having been issued to the affidavit dated 01.09.2020 where advisory dated 18.04.2020 as well as minutes of meeting dated 09.06.2020 held under the chairmanship of Director of disinfection tunnel using various chemicals and Taking note of the meeting proceeding dated 09.06.200 minutes This Court passed following order on A counter affidavit has been filed on behalf of Union of India. In the counter affidavit at page 40 copy of meeting ­ Annexure G dated 09.06.2020 has been brought on the record where it has been recommended. Shri Tushar Mehta learned Solicitor General submits that relevant directions and circulars shall be issued As prayed by Shri Tushar Mehta learned Solicitor General list after two 10. After the aforesaid order another affidavit titled as Compliance affidavit dated 28.09.2020 by respondent No.1 where O.M. dated 23.09.2020 has been brought on the record reiterating that spraying of individuals or groups with disinfectant using any 11. An additional affidavit has also been filed by rays to disinfect sterilize edible items like fruits rejoinder affidavit. An intervention application has also been filed by one Ideal Flow Pvt. Ltd. which pressurized steam disinfectant chamber. The applicant chamber natural oils are mixed in an emulsifier is a major difference between disinfectant tunnels spraying chemical disinfectant and pressurized applicant in light of the major difference of the applicant s product from that of disinfection tunnel 12. We have heard the petitioner appearing in person Shri Tushar Mehta learned Solicitor General for the respondents and Smt. Anita Shenoy Senior Advocate for Health & Family Welfare the respondents No.1 through Union of India has not taken any step to stop use advertisement and sale of chemical based disinfection anywhere in the world by any credible health agency which states that human disinfection tunnels are effective against Covid­19 virus. On the contrary there are sufficient health advisories by the WHO respondent No.1 and other international agency that tunnels are counter productive and harmful for human No.1 which recommends usage of any organic solution 14. The petitioner submits that in absence of any across the Country where people are producing self­ certified so called safe disinfection tunnels with variety of organic solutions. The petitioner submits that the concept of “human disinfection” through walk in tunnel is flawed and misconceived and be not 15. Shri Tushar Mehta learned Solicitor General submits that answering respondent No.1 had not issued any advisory for usage installation production or fumigation of chemicals organic disinfectants for the purpose of disinfecting human beings. Learned Solicitor General has referred to advisory dated 18.04.2020 issued by respondent No.1. It is further the Chairmanship of Director General Health Services review on use of disinfection tunnel was made and it was reiterated that spraying disinfectant is not recommended in both health care and non­health care settings. Shri Mehta submits that the States UTs have to implement the guidelines dated 18.04.2020 and the 16. Learned counsel for the intervenor has submitted that the product which is being designed by the applicant does not use any chemical as human health. The applicant opposes any blanket ban on the I) Whether spraying or fumigation of any kind of chemical disinfectants on human beings without the approval of the relevant ministry is violative of claimed organic disinfectant on human beings without III) Whether exposure of human beings to artificial All the above questions being inter­connected are 19. Article 21 of the Constitution provides for life used in Article 21 has wide import and which have been recognized from time to time by the Article 21 is Right to live with dignity. Right to health is also recognized as an important facet of Article 21 of the Constitution. We may refer to pronouncement of this Court in Devika Biswas versus Union of India and others 10 SCC 726 where this Court held that Right to Health is an integral facet of Right guaranteed under Article 21 of the Constitution. In paragraph 107 of this Court dealing 107. It is well established that the right to life under Article 21 of the dignified and meaningful life and the right to health is an integral facet of this right. In CESC Ltd. v. Subhash Chandra Bose dealing with the right to health of workers it was noted that the right to health must be considered an aspect of social justice informed by not only Article 21 of the Constitution but also the Directive Principles of State Policy and international covenants to which India is a party. Similarly the bare minimum obligations of the State to ensure the preservation of the right to banga Khet Mazdoor Samity vs. State of 20. In the present case Right to Health under consideration is in wake of pandemic Covid­19. The referred to as Act 2005) has been invoked to combat Covid­19 by different authorities constituted under Act 2005. Covid­19 is a notified disaster for the 21. The Act 2005 is an act for effective management of disasters and matters connected therewith and incidental thereto. Disaster Management includes prevention of danger threat of a disaster mitigation or reduction of risk of a disaster preparedness to deal with the disaster and prompt response to any Section 3 National Disaster Management Authority is established for the purposes of the Act. Section 8 provides for the constitution of National Executive National Executive Committee. The National Executive Committee is to assist the National Authority in authority and ensure the compliance of the directions issued by the Central Government for the purposes of the Central Government. Sub­Section of Section 10 Executive Committee. Section 10 which is relevant for 10. Powers and functions of National assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster Without prejudice to the generality b) prepare the National Plan to be c) coordinate and monitor the d) lay down guidelines for preparing disaster management plans by different Ministries or Departments of the Government of India and the State to the State Governments and the State Authorities for preparing their disaster management plans in accordance with the guidelines laid down by the National f) monitor the implementation of the National Plan and the plans prepared by the Ministries or Departments of the g) monitor the implementation of the guidelines laid down by the National Authority for integrating of measures for prevention of disasters and mitigation by the Ministries or Departments in their h) monitor coordinate and give directions regarding the mitigation and preparedness measures to be taken by different Ministries or Departments and i) evaluate the preparedness at all governmental levels for the purpose of responding to any threatening disaster where necessary for enhancing such j) plan and coordinate specialised for different levels of officers k) coordinate response in the event of any threatening disaster situation or l) lay down guidelines for or give Departments of the Government of India the State Governments and the State by them in response to any threatening m) require any department or agency of the Government to make available to the National Authority or State Authorities such men or material resources as are available with it for the purposes of emergency response rescue and relief n) advise assist and coordinate the activities of the Ministries or Departments of the Government of India State Authorities statutory bodies other organisations and others engaged in or give advice to the State Authorities and District Authorities for carrying out p) promote general education and awareness in relation to disaster q) perform such other functions as the National Authority may require it to 22. The powers under sub­section of Section 10 clausesandof Act 2005 have been delegated to Secretary Ministry of Health and Family Welfare In exercise of the powers conferred under 2005 Union home Secretary being Chairman of the National Executive Committee(NEC hereby delegates its power under clauses Secretary Ministry of Health and Family Welfare Government of India to enhance the preparedness and containment of novel Coronavirus(COVID­19) and the other ancillary matters connected thereto. This order shall be deemed to have come into 23. Thus it is the Secretary Ministry of Health and give directions to the concerned Ministries or Departments of Government of India the State be taken by them in response to any disrupting health of entire citizenry of the country and all facets relating to pandemic Covid­19 its prevention of authorities empowered with different duties and functions under different statutes including Disaster which was issued against spraying of disinfectant on people for Covid­19 management. The advisory dated received many queries regarding the efficacy of use disinfectants such as Sodium hypochlorite spray used over the individuals to disinfect them The strategy seems to have gained of lot of media attention and is also being To examine the merit of using disinfect them from COVID­19 and to Disinfectants are chemicals that destroy microorganisms. It refers to substances applied on inanimate objects owing to cleaning and disinfection only of who are suspected or confirmed to have adopted while using disinfectants for cleaning like wearing gloves during In view of the above the following recommended under any circumstances Spraying an individual or group with chemical disinfectants is physically and with the COVID­19 virus spraying the external part of the body does not kill that they are effective even in lead to irritation of eyes and skin and potentially gastrointestinal effects such as nausea and vomiting. Inhalation of of mucous membranes to the nose throat respiratory tract and may also cause safety and actually hamper public observance to hand washing and social 25. Even though the above advisory was issued by spraying of disinfectant on people for Covid­19 management but several contrary opinion have been expressed by other bodies and organisations. In this context reference has been made to the joint Press Release dated 23.04.2020 by NCL for external body surface mist tunnel by following standard safety 26. The petitioner has also referred to in the writ recommended for effective sanitization amid Covid­19 and against disinfectment of human body has been 27. After Notice was issued in the petition the counter affidavit was filed. In the Counter affidavit of the meeting dated 09.06.2020 chaired by Director General Health Services where review was made on the use of disinfection tunnels. Observations as recorded The matter of spraying of disinfectant on people for COVID­19 management was discussed in the Joint Monitoring Group and an advisory in this regard has been issued by MOHFW DGHS EMR Division which is available on the website of the recommended under any circumstances Spraying an individual or group with chemical disinfectants physically and • Even if a person is potentially exposed with the Covid­19 virus does not kill the virus that has entered your body. Also there is no scientific evidence to suggest that they are effective even in disinfecting the outer clothing body in fact lead to a false sense of disinfection and safety and actually hamper public observance to hand washing and social distancing It is reiterated that spraying of individuals with disinfectants is This could be not recommended physically and psychologically harmful and would not reduce an infected person s ability to spread the virus through droplets or contact. Moreover spraying individuals with chlorine and other toxic chemicals could result in eye and skin irritation bronchospasm due to inhalation and gastrointestinal As per the advisory by MOHFW DGHS EMR Chemical disinfectants are recommended for cleaning and disinfection only of frequently touched areas surfaces by have COVID­19. Precautionary measures are to be adopted while using disinfectants for cleaning like Spraying of chlorine on individuals can potentially gastrointestinal effects such as nausea and vomiting. Inhalation of sodium hypochlorite can lead to irritation of mucous membranes to the nose throat respiratory tract and may The chemicals such as freshly prepared 1% sodium hypochlorite or 70% ethanol etc. are to be used as indicated to disinfect inanimate surfaces using mops wipes for the recommended contact Spraying disinfectants is disinfectants to environmental surfaces by spraying or fogging is not recommended for COVID­19 as the disinfectants may not be effective in removing organic material and may miss surfaces shielded by objects folded fabrics or surfaces with intricate designs. If disinfectants are to be applied this should be done with a cloth or wipe that has been soaked in Spraying or fumigation of outdoor spaces such as streets or marketplaces is also not recommended to kill the COVID­19 virus or other pathogens because disinfectant is inactivated by dirt and debris and it is not feasible matter from such spaces. Moreover spraying porous surfaces such as of organic matter chemical spraying is unlikely to adequately cover all surfaces for the duration of the required contact time needed to inactivate pathogens. Furthermore 19. In addition spraying disinfectants The committee referred to the document of the World Health Organisation on Cleaning and disinfection of 28. It is further relevant to notice that in paragraph 13 of the affidavit dated 01.09.2020 following 13. It is most respectfully submitted that as public health and hospitals are Territories to implement the guidelines issued by the Ministry of Health and ... .... 29. From the pleadings brought on record on behalf of respondent No.1 it is clear that although by the 30. We have noted above the powers and functions of National Executive Committee under Section 10 of the Act 2005 which specifically empowers the National Executive Committee to give directions regarding measures to be taken by the concerned ministry and departments of the Government State Governments and State Authorities in response to the threatening 31. Section 36 of the Act 2005 expressly enumerates 36. Responsibilities of Ministries or Departments of Government of India.—It shall be the responsibility of every Ministry or Department of the Government of disasters mitigation preparedness and capacity building in accordance with the guidelines laid down by the National b) integrate into its development plans or mitigation of disasters in accordance with the guidelines laid down by the c) respond effectively and promptly to any threatening disaster situation or of the National Authority or the directions of the National Executive it its policies rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters mitigation or preparedness e) allocate funds for measures for prevention of disaster mitigation f) provide assistance to the National up preparedness and response plans capacity­building data collection and identification and training of personnel in relation to disaster ii) carrying out rescue and relief iii) assessing the damage from any iv) carrying out rehabilitation and g) make available its resources to the National Executive Committee or a State Executive Committee for the purposes of threatening disaster situation or ii) transporting personnel and iii) providing evacuation rescue temporary shelter or other immediate iv) setting up temporary bridges v) providing drinking water essential provisions health care take such other actions as it may consider necessary for disaster disinfectant on human body is not recommended and it advisory large number of organizations public was necessary for the respondent No.1 to issue necessary directions either to prevent such use or regulate such use as per requirement to protect the health of the people. The provisions of Disaster Management Act Section 10 36 and other provisions are 33. We have extracted paragraph 13 of the Counter Affidavit where it has been stated by the respondent No.1 that public health and hospitals it is for the Health and Family Welfare and role of the Central Government is limited to provide necessary guidelines the provisions of the Act 2005 confer certain more responsibilities and duties on the respondent No.1 apart from issuance of guidelines and providing financial support. The Act 2005 is special legislation containing self­contained provisions to deal with a disaster. The Pandemic being a disaster within the meaning of Act 2005 has to be dealt with taking all measures to contain the pandemic and all on record in this writ petition indicate that in the public authorities organizations were using disinfectants both chemical organic on the human body be harmful to the health and the body. Some more actions were required to remove the cloud of either prevent such use or regulate the use so that 36. When a statute confer power on authority and that in general the power is coupled with the duty. This Court in Commissioner of Police versus Gordhandas Bhanji AIR 1952 SC 16 speaking through Vivian Bose J. had laid down the off­quoted preposition in 28. The discretion vested in the Commissioner of Police under R.250 has involving the convenience safety morality and welfare of the public at large. An enabling power of this kind conferred for public reasons and for the public benefit is in our opinion coupled with a duty to exercise it when the circumstances so demand. It is a duty be evaded performance of it can be 37. This Court again in L.Hirday Narain versus income Tax Officer Bareilly 2 SCC 355 reiterated the 13....if a statute invests a public officer with authority to do an act in a specified set of circumstances it is imperative upon him to exercise his authority in a manner appropriate to the right to apply moves in that behalf and circumstances for exercise of authority in the statute are prima facie enabling the Courts will readily infer a duty to enforcement of a right­public or private­ above principle in Municipal Council Ratlam versus case was a case where Municipal Council Ratlam was to the Municipal Corporation which came to be Benjamin Bisraiely in paragraph 9 of the judgment the people and for the people all springs and all must exist.” Discretion home the circumstances for its benign 39. With regard to judicial process important is to make remedy effective failing which the right becomes sterile. In paragraph 16 of the judgment 16...The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only Affirmative action to make the remedy effective is of the essence of the right 24. ...The State will realise that of governance that steps are taken for the improvement of public health as 41. An additional affidavit has been filed by the respondent No.1 where details regarding use of items like fruits and vegetables has been quoted. In additional affidavit rules have been relied namely Product) Rules 2012 which rules require that no license for radiation processing of food and allied radiation processing facility for food and allied product. There are hosts of regulatory measures of other articles. We are of the view that for spraying disinfectant on human body fumigation or use of UV such use is not recommended. The respondent No.1 has wide powers and responsibilities under Act 2005 which could have been utilized to remedy the situation. In event use of disinfectant on human body is to cause to be immediate remedial action and respondent No.1 cannot stop only by saying that such use is not 42. In view of the foregoing discussion we are of the view that ends of justice be served in disposing the i) The respondent No.1 may consider and issue it under the Disaster Management Act 2005 regarding ban Regulation on the usage of disinfection tunnels involving spraying or ii) There shall be similar consideration and directions by the respondents as indicated above general the aforesaid exercise be completed by

Cross-cases shall be tried by one and the same court: Allahabad High Court

Cross-cases or counter-cases are two different of the same incident, resulting in two criminal cases. Therefore, they should be tried by the same court to avoid technical and other difficulties arising out of the order of one. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Gautam Chowdhary in the matter of  Pradeep Kumar Dubey vs State Of U.P. & Anr [APPLICATION U/S 482 No. – 20241 of 2021]. The facts of the case were that some dispute arose between the parties in respect of house for which litigation is pending before the civil court. Meanwhile, some quarrel took place between the parties in which both sides incurred injuries, and one Ajay Kumar Alias Kallu died. Thus, cross-version of the same incident was filed under section 156(3) were filed. The Hon’ble High Court took into view the judgment held in Nathi Lal Vs. State of Uttar Pradesh 1990 SCC (Cri) 638 by the Hon’ble Supreme Court and said that when two criminal cases relating to the same incident are in play, then they both are tried and disposed of by the same court. Additionally, the Hon’ble High court observed that “We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court can be summarised thus (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case, to all intents and purposes, different or conflicting versions of one incident.” Finally, the Hon’ble High Court allowed the appeal and directed the concerned session court to try and dispose of the cases in the manner set out in the Nathi lal case(Supra) by the Hon’ble Supreme Court. Click Here To Read The Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that some dispute arose between the parties in respect of house for which litigation is pending before the civil court. Meanwhile, some quarrel took place between the parties in which both sides incurred injuries, and one Ajay Kumar Alias Kallu died. Thus, cross-version of the same incident was filed under section 156(3) were filed. The Hon’ble High Court took into view the judgment held in Nathi Lal Vs. State of Uttar Pradesh 1990 SCC (Cri) 638 by the Hon’ble Supreme Court and said that when two criminal cases relating to the same incident are in play, then they both are tried and disposed of by the same court. Additionally, the Hon’ble High court observed that “We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court can be summarised thus (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case, to all intents and purposes, different or conflicting versions of one incident.” Finally, the Hon’ble High Court allowed the appeal and directed the concerned session court to try and dispose of the cases in the manner set out in the Nathi lal case(Supra) by the Hon’ble Supreme Court. Click Here To Read The Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court took into view the judgment held in Nathi Lal Vs. State of Uttar Pradesh 1990 SCC (Cri) 638 by the Hon’ble Supreme Court and said that when two criminal cases relating to the same incident are in play, then they both are tried and disposed of by the same court. Additionally, the Hon’ble High court observed that “We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court can be summarised thus (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the case and the counter-case, to all intents and purposes, different or conflicting versions of one incident.” Finally, the Hon’ble High Court allowed the appeal and directed the concerned session court to try and dispose of the cases in the manner set out in the Nathi lal case(Supra) by the Hon’ble Supreme Court. Click Here To Read The Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble High Court allowed the appeal and directed the concerned session court to try and dispose of the cases in the manner set out in the Nathi lal case(Supra) by the Hon’ble Supreme Court.

A.F.R Court No. 85 Case : APPLICATION U S 482 No. 202421 Applicant : Pradeep Kumar Dubey Opposite Party : State Of U.P.And Another Counsel for Applicant : Radhey Shyam Shukla Vipul Shukla Counsel for Opposite Party : G.A Hon ble Gautam Chowdhary J Heard learned counsel for the applicant and learned A.G.A. for the State. The present 482 Cr.P.C. application has been filed praying for quashing of impugned order dated 16.8.2021 as well as the entire proceedings of S.T. No. 2914arising out of Case Crime No. 1114 under Sections 147 148 149 302 504 506 307 452 I.P.C. Police Station Mirzapur District Shahjahanpur and further to connect cross complaint case no.11219under section 147 148 307 323 506 I.P.C. Police Station Mirzapur District Shahjahanpur and decide both the cases simultaneously. Learned Additional Government Advocate submits that no useful purpose would be served in issuing notice to opposite party No. 2 and keeping this application pending before this Court and the same may be disposed of. Learned counsel for the applicant submits that according to the F.I.R. lodged by the informant regarding some dispute in between the parties in respect of house for which the litigation is going on before the civil court. It is argued that some quarrel took place in between the parties in which both the persons of the parties received some injuries and one Ajay Kumar alias Kallu died. Further submission is that cross version of the same incident has been lodged by a complaint after moving of an application under section 156(3) Cr.P.C. Contention is that the case in which F.I.R. was lodged is attaining finality and on the other hand the complaint case is at initial stage before the court below. Submission is that both the cases may be clubbed together and be heard together so that it may cause no prejudice to the justice. Placing reliance upon the judgement of Hon ble Supreme Court in Nathi Lal Vs. State of Uttar Pradesh 1990 SCC638 and in the case of Sudhir and others Vs. Sate of M.P. made a suggestion Goriparthi Krishtamma In re: 1929 MWN 881 that "a case and counter case arising out of the same affair should always if practicable be tried by the same court and each party would represent themselves as having been the innocent victims of the aggression of the other". 10. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court can be summarised thus It staves off the danger of an accused being convicted before his whole case is before the court.It deters conflicting judgements being delivered upon similar facts.In reality the case and the counter case to all intents and purposes different or conflicting versions of one incident 18. In the present case the Sessions Judge ought not have transferred the second case to the Chief Judicial Magistrate as he did but he himself should have tried it in the manner indicated in Nathi Lal No.40000 and set aside the order of the High Court as well as the order passed by the Sessions Court by which the case was transferred to the Chief Judicial Magistrate. We direct the Sessions Court concerned to try and dispose of the first case and the second case in the manner set out in Nathi Lal s caseNo.3840 of 2000 will In view of the aforesaid legal position the judgement and order dated 16.8.2021 passed by the Additional Sessions Judge Court No. 1 Shahjahanpur is set aside. Learned Judge is directed to decide both the sessions trial together and not to pronounce the judgment in Case Crime No.1114 at this stage. However it is provided that evidence recorded in one case should not be read in another and each case must be decide on its own merit. With the aforesaid observations this application is finally disposed of. Order Date : 26.10.2021

Sudhir Gopi V. Indira Gandhi National Open University

The arbitral tribunal, being a creature of limited jurisdiction, has no power to extend the scope of the arbitral proceedings to include persons who have not consented to arbitrate. Thus, an arbitrator would not have the power to pierce the corporate veil to bind other parties who have not agreed to arbitrate. Sudhir Gopi, Chairman & MD of Universal Empire Institute of Technology (UEIT) filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award dated 20.07.2015 delivered by the sole arbitrator.The limited controversy involved in the present petition is whether the impugned award to the extent that it makes Mr. Sudhir Gopi jointly and severally liable along with UEIT for the amount awarded in favour of IGNOU, is sustainable considering that Mr. Sudhir Gopi was not a signatory to the agreement in question. UEIT is a limited liability company and it is Gopi’s case that although he is the principal shareholder as well as the Chairman and Managing Director of UEIT, he is not personally liable for the contractual liability of UEIT. Further, that he is not a party to the arbitration agreement and, therefore, the impugned award since it holds him liable, is without jurisdiction.IGNOU is a statutory university and has developed educational programmes for distant learning, which are offered in over 35 countries across the globe.  UEIT is company incorporated under the applicable laws in Dubai,(UAE). UEIT and IGNOU agreed to collaborate for a distant educational project in Dubai, UAE.Disputes arose between the parties in connection with the Agreement. It is IGNOU’s case that it was entitled to receive its share of fee within a period of four weeks of the same being collected, which UEIT failed and neglected to remit. The invoices raised by IGNOU for the initial years were paid but invoices raised for admissions, re-admission and re-registration of students after July 2008 remained outstanding and only certain ad hoc payments were made.UEIT, inter alia, claimed that IGNOU had enrolled students from other institutes that were operating illegally outside the trade free zone. It was contended that the expenditure incurred to run a centre in a trade free zone was higher than that required to operate such institutes outside the trade free zones. Thus, UEIT was adversely affected by IGNOU enrolling students from such illegal institutes.IGNOU terminated the Agreement with UEIT and encouraged the enrolled students to migrate to other PIs. IGNOU also invoked the arbitration clause. Before the arbitral tribunal, IGNOU filed its statement of claims inter alia claiming an aggregate sum of USD 14,48,046. Mr. Gopi and UEIT filed a reply to the statement of claims before the arbitral tribunal on 30.04.2012. Simultaneously, they also filed counter claims claiming a sum of USD 66,15,498.UEIT claimed that the statement of claims filed by IGNOU was bad for mis-joinder of parties as Mr. Sudhir Gopi was not a party to the Agreement/or the arbitration agreement (clause). UEIT also prayed that the issue of mis-joinder of parties be considered as a preliminary issue.Mr. Gopi also filed a separate application confirming the above and inter alia contending that the claim petition filed by IGNOU was not maintainable against him and the issue of mis-joinder of parties be considered as a preliminary issue.During the course of proceedings, the parties agreed that without prejudice to their respective contentions, the issue to mis-joinder of Mr. Sudhir Gopi be considered alongwith other issues framed by the arbitral tribunal.The arbitral tribunal awarded a sum of USD 664,070 in favour of IGNOU against Mr. Gopi and UEIT, jointly and severally. In addition, the arbitral tribunal also awarded interest at the rate of 12% per annum on the awarded amount from 03.01.2012 to the date of the award and from the date of the award till full realisation of the amount. The arbitral tribunal also awarded the cost of proceedings quantified at Rs. 1,00,000/-. Sudhir Gopi, Chairman & MD of Universal Empire Institute of Technology (UEIT) filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award dated 20.07.2015 delivered by the sole arbitrator. The limited controversy involved in the present petition is whether the impugned award to the extent that it makes Mr. Sudhir Gopi jointly and severally liable along with UEIT for the amount awarded in favour of IGNOU, is sustainable considering that Mr. Sudhir Gopi was not a signatory to the agreement in question. UEIT is a limited liability company and it is Gopi’s case that although he is the principal shareholder as well as the Chairman and Managing Director of UEIT, he is not personally liable for the contractual liability of UEIT. Further, that he is not a party to the arbitration agreement and, therefore, the impugned award since it holds him liable, is without jurisdiction. IGNOU is a statutory university and has developed educational programmes for distant learning, which are offered in over 35 countries across the globe.  UEIT is company incorporated under the applicable laws in Dubai,(UAE). UEIT and IGNOU agreed to collaborate for a distant educational project in Dubai, UAE. Disputes arose between the parties in connection with the Agreement. It is IGNOU’s case that it was entitled to receive its share of fee within a period of four weeks of the same being collected, which UEIT failed and neglected to remit. The invoices raised by IGNOU for the initial years were paid but invoices raised for admissions, re-admission and re-registration of students after July 2008 remained outstanding and only certain ad hoc payments were made. UEIT, inter alia, claimed that IGNOU had enrolled students from other institutes that were operating illegally outside the trade free zone. It was contended that the expenditure incurred to run a centre in a trade free zone was higher than that required to operate such institutes outside the trade free zones. Thus, UEIT was adversely affected by IGNOU enrolling students from such illegal institutes. IGNOU terminated the Agreement with UEIT and encouraged the enrolled students to migrate to other PIs. IGNOU also invoked the arbitration clause. Before the arbitral tribunal, IGNOU filed its statement of claims inter alia claiming an aggregate sum of USD 14,48,046. Mr. Gopi and UEIT filed a reply to the statement of claims before the arbitral tribunal on 30.04.2012. Simultaneously, they also filed counter claims claiming a sum of USD 66,15,498. UEIT claimed that the statement of claims filed by IGNOU was bad for mis-joinder of parties as Mr. Sudhir Gopi was not a party to the Agreement/or the arbitration agreement (clause). UEIT also prayed that the issue of mis-joinder of parties be considered as a preliminary issue. Mr. Gopi also filed a separate application confirming the above and inter alia contending that the claim petition filed by IGNOU was not maintainable against him and the issue of mis-joinder of parties be considered as a preliminary issue. During the course of proceedings, the parties agreed that without prejudice to their respective contentions, the issue to mis-joinder of Mr. Sudhir Gopi be considered alongwith other issues framed by the arbitral tribunal. The arbitral tribunal awarded a sum of USD 664,070 in favour of IGNOU against Mr. Gopi and UEIT, jointly and severally. In addition, the arbitral tribunal also awarded interest at the rate of 12% per annum on the awarded amount from 03.01.2012 to the date of the award and from the date of the award till full realisation of the amount. The arbitral tribunal also awarded the cost of proceedings quantified at Rs. 1,00,000/-. ISSUE BEFORE THE COURT:Whether there existed any arbitration agreement between Mr. Sudhir Gopi and IGNOU.Whether the arbitration proceedings are bad for mis-joinder of Sudhir Gopi? Whether there existed any arbitration agreement between Mr. Sudhir Gopi and IGNOU. Whether the arbitration proceedings are bad for mis-joinder of Sudhir Gopi? RATIO OF THE COURTThe court stated, “Like consummated romance, arbitration rests on consent” The agreement between parties to resolve their disputes by arbitration is the cornerstone of arbitration. The arbitral tribunal derives its jurisdiction from the consent of parties. In absence of such consent, the arbitral tribunal would have no jurisdiction to make an award and the award so rendered would, plainly, be of no value.The Court observed that on the present case, admittedly, the Agreement is not signed by Mr. Sudhir Gopi in his personal capacity. None of the communications produced provides a record of an agreement between him and IGNOU to arbitrate. The arbitral tribunal has also not proceeded based on any such agreement.It was contended on behalf of IGNOU that since he had filed counter claims jointly with UEIT, his consent to arbitrate must be inferred. However, that is not the basis on which the arbitral tribunal has proceeded against Mr.Gopi The contention that Mr. Gopi’s consent to arbitrate must be inferred from his preferring counter claims, is also unmerited. This is so because, in compliance with the directions of the arbitral tribunal issued on 30.04.2015, both UEIT and Mr. Gopi had clarified that Mr. Gopi had preferred the counter claims on behalf of UEIT and not in his personal capacity. Further, both UEIT and Mr. Gopi had resisted the claims on the ground that there was mis-joinder of parties to the extent that Mr. Gopi had been arrayed as a respondent in the arbitral proceedings.The Curt mentioned that the jurisdiction of the arbitrator is circumscribed by the agreement between the parties and it is obvious that such limited jurisdiction cannot be used to bring within its ambit, persons that are outside the circle of consent. The arbitral tribunal, being a creature of limited jurisdiction, has no power to extend the scope of the arbitral proceedings to include persons who have not consented to arbitrate. Thus, an arbitrator would not have the power to pierce the corporate veil to bind other parties who have not agreed to arbitrate. The court stated, “Like consummated romance, arbitration rests on consent” The agreement between parties to resolve their disputes by arbitration is the cornerstone of arbitration. The arbitral tribunal derives its jurisdiction from the consent of parties. In absence of such consent, the arbitral tribunal would have no jurisdiction to make an award and the award so rendered would, plainly, be of no value. The Court observed that on the present case, admittedly, the Agreement is not signed by Mr. Sudhir Gopi in his personal capacity. None of the communications produced provides a record of an agreement between him and IGNOU to arbitrate. The arbitral tribunal has also not proceeded based on any such agreement. It was contended on behalf of IGNOU that since he had filed counter claims jointly with UEIT, his consent to arbitrate must be inferred. However, that is not the basis on which the arbitral tribunal has proceeded against Mr.Gopi The contention that Mr. Gopi’s consent to arbitrate must be inferred from his preferring counter claims, is also unmerited. This is so because, in compliance with the directions of the arbitral tribunal issued on 30.04.2015, both UEIT and Mr. Gopi had clarified that Mr. Gopi had preferred the counter claims on behalf of UEIT and not in his personal capacity. Further, both UEIT and Mr. Gopi had resisted the claims on the ground that there was mis-joinder of parties to the extent that Mr. Gopi had been arrayed as a respondent in the arbitral proceedings. The Curt mentioned that the jurisdiction of the arbitrator is circumscribed by the agreement between the parties and it is obvious that such limited jurisdiction cannot be used to bring within its ambit, persons that are outside the circle of consent. The arbitral tribunal, being a creature of limited jurisdiction, has no power to extend the scope of the arbitral proceedings to include persons who have not consented to arbitrate. Thus, an arbitrator would not have the power to pierce the corporate veil to bind other parties who have not agreed to arbitrate. Further the court stated that there may be cases where courts can compel non signatory (ies) to arbitrate. These may be on grounds of (a) implied consent and/or (b) disregard of corporate personality. In cases of implied consent, the consent of non signatory (ies) to arbitrate is inferred from the conduct and intention of the parties.The Court then referred to the case of Chloro Controls India Private Limited v. Severn Trent Water Purifications Inc. ,the Supreme Court had explained the above principle in the following words:“Various legal basis may be applied to bind a non-signatory to an arbitration agreement. The first theory is that of implied consent, third party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities. The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called the “alter ego”), joint venture relations, succession and estoppel They do not rely on the parties’ intention but rather on the force of the applicable law.”The Court considered it necessary to emphasize that whether a court will compel any person to arbitrate would have to be examined in the context of the specific provisions of the applicable statute. The courts would, undoubtedly, have the power to determine whether in a given case the corporate veil should be pierced and the persons behind the corporate façade be held accountable for the obligations of the corporate entity. However as stated earlier, an arbitral tribunal, has no jurisdiction to lift the corporate veil; its jurisdiction is confined by the arbitration agreement – which includes the parties to arbitration – and it would not be permissible for the arbitral tribunal to expand or extend the same to other persons.The Court the referred to similar view was also expressed by the Bombay High Court in Oil and Natural Gas Corporation Ltd. v. Jindal Drilling and Industries Limited:  in the following words: The petitioners had canvassed before the arbitral tribunal that the arbitral tribunal shall lift the corporate veil to find out that the said DEPL and the respondents herein were forming part of the said Jindal Group and were one and the same entity and thus the respondents were liable for the liabilities of the said DEPL. In my view, the arbitral tribunal has no power to lift the corporate veil. Only a Court can lift the corporate veil of a company if the strongest case is made out. In my view, the prayer of the petitioners for lifting the corporate veil of the said DEPL was itself not maintainable in the arbitration proceedings.”Furthermore the Court observed that the solitary reason for the arbitral tribunal to hold that Mr. Sudhir Gopi was a party to the Agreement is that he held almost entire shares of UEIT; thus, exercising absolute control over the affairs of UEIT. The entire business of UEIT was run by Mr. Sudhir Gopi. The arbitral tribunal held that Mr. Gopi was the “face and a cloak” of UEIT for running the business and, therefore, was a party to the arbitration agreement Consequently, the arbitral tribunal held that Mr. Gopi and UEIT were jointly and severally liable for the liabilities of UEIT. As stated above, arbitration is founded on consent between the parties to refer the disputes to arbitration. The fact that an individual or a few individuals hold controlling interest in a company and are in-charge of running its business does not ipso jure render them personally bound by all agreements entered into by the company.The Court listed out the circumstances where Arbitration agreement can be extended to non-signatories in limited circumstances; first, where the Court comes to the conclusion that there is an implied consent and second, where there are reasons to disregard the corporate personality of a party, thus, making the shareholder(s) answerable for the obligations of the company. In the present case, the arbitral tribunal has proceeded to disregard the corporate personality of UEIT. The arbitral tribunal has lifted the corporate veil only for the reason that UEIT’s business was being conducted by Mr. Sudhir Gopi who was also the beneficiary of its business being the absolute shareholder (barring a single share held by Mr. Fikri) of UEIT. This is clearly impermissible and militates against the law settled since the nineteenth century. Any party dealing with the limited liability company is fully aware of the limitations of corporate liability. Business are organised on the fundamental premise that a company is an independent juristic entity notwithstanding that its shareholders and directors exercise the ultimate control on the affairs of the company. In law, the corporate personality cannot be disregarded. Undisputedly, there are exceptions to this rule and the question is whether this case falls within the scope of any of the exceptions.A corporate veil can be pierced only in rare cases where the Court comes to the conclusion that the conduct of the shareholder is abusive and the corporate façade is used for an improper purpose, for perpetuating a fraud, or for circumventing a statute. As stated earlier, in the present case, there is no foundation that the corporate façade of UEIT was used by Mr. Gopi to perpetuate a fraud. Mere failure of a corporate entity to meet its contractual obligations is no ground for piercing the corporate veil. Although the arbitral tribunal has mentioned in the passing that UEIT was used for improper purpose, however, there is no foundation for such observation. It was never IGNOU’s case that UEIT was set up or used to perpetuate a fraud on IGNOU and at any rate, no particulars – that are required to be pleaded to set up a case of fraud – to indicate that a fraud had been perpetuated were pleaded by IGNOU. Thus, the decision of the arbitral tribunal to pierce the corporate veil is fundamentally flawed. It falls foul of the fundamental policy of Indian law that recognises that a company is an independent juristic person. The Court then referred to the case of Chloro Controls India Private Limited v. Severn Trent Water Purifications Inc. ,the Supreme Court had explained the above principle in the following words:“Various legal basis may be applied to bind a non-signatory to an arbitration agreement. The first theory is that of implied consent, third party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities. The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called the “alter ego”), joint venture relations, succession and estoppel They do not rely on the parties’ intention but rather on the force of the applicable law.” The Court considered it necessary to emphasize that whether a court will compel any person to arbitrate would have to be examined in the context of the specific provisions of the applicable statute. The courts would, undoubtedly, have the power to determine whether in a given case the corporate veil should be pierced and the persons behind the corporate façade be held accountable for the obligations of the corporate entity. However as stated earlier, an arbitral tribunal, has no jurisdiction to lift the corporate veil; its jurisdiction is confined by the arbitration agreement – which includes the parties to arbitration – and it would not be permissible for the arbitral tribunal to expand or extend the same to other persons. The Court the referred to similar view was also expressed by the Bombay High Court in Oil and Natural Gas Corporation Ltd. v. Jindal Drilling and Industries Limited:  in the following words: The petitioners had canvassed before the arbitral tribunal that the arbitral tribunal shall lift the corporate veil to find out that the said DEPL and the respondents herein were forming part of the said Jindal Group and were one and the same entity and thus the respondents were liable for the liabilities of the said DEPL. In my view, the arbitral tribunal has no power to lift the corporate veil. Only a Court can lift the corporate veil of a company if the strongest case is made out. In my view, the prayer of the petitioners for lifting the corporate veil of the said DEPL was itself not maintainable in the arbitration proceedings.” Furthermore the Court observed that the solitary reason for the arbitral tribunal to hold that Mr. Sudhir Gopi was a party to the Agreement is that he held almost entire shares of UEIT; thus, exercising absolute control over the affairs of UEIT. The entire business of UEIT was run by Mr. Sudhir Gopi. The arbitral tribunal held that Mr. Gopi was the “face and a cloak” of UEIT for running the business and, therefore, was a party to the arbitration agreement Consequently, the arbitral tribunal held that Mr. Gopi and UEIT were jointly and severally liable for the liabilities of UEIT.  As stated above, arbitration is founded on consent between the parties to refer the disputes to arbitration. The fact that an individual or a few individuals hold controlling interest in a company and are in-charge of running its business does not ipso jure render them personally bound by all agreements entered into by the company. The Court listed out the circumstances where Arbitration agreement can be extended to non-signatories in limited circumstances; first, where the Court comes to the conclusion that there is an implied consent and second, where there are reasons to disregard the corporate personality of a party, thus, making the shareholder(s) answerable for the obligations of the company. In the present case, the arbitral tribunal has proceeded to disregard the corporate personality of UEIT. The arbitral tribunal has lifted the corporate veil only for the reason that UEIT’s business was being conducted by Mr. Sudhir Gopi who was also the beneficiary of its business being the absolute shareholder (barring a single share held by Mr. Fikri) of UEIT. This is clearly impermissible and militates against the law settled since the nineteenth century. Any party dealing with the limited liability company is fully aware of the limitations of corporate liability. Business are organised on the fundamental premise that a company is an independent juristic entity notwithstanding that its shareholders and directors exercise the ultimate control on the affairs of the company. In law, the corporate personality cannot be disregarded. Undisputedly, there are exceptions to this rule and the question is whether this case falls within the scope of any of the exceptions. A corporate veil can be pierced only in rare cases where the Court comes to the conclusion that the conduct of the shareholder is abusive and the corporate façade is used for an improper purpose, for perpetuating a fraud, or for circumventing a statute.  As stated earlier, in the present case, there is no foundation that the corporate façade of UEIT was used by Mr. Gopi to perpetuate a fraud. Mere failure of a corporate entity to meet its contractual obligations is no ground for piercing the corporate veil. Although the arbitral tribunal has mentioned in the passing that UEIT was used for improper purpose, however, there is no foundation for such observation. It was never IGNOU’s case that UEIT was set up or used to perpetuate a fraud on IGNOU and at any rate, no particulars – that are required to be pleaded to set up a case of fraud – to indicate that a fraud had been perpetuated were pleaded by IGNOU. Thus, the decision of the arbitral tribunal to pierce the corporate veil is fundamentally flawed. It falls foul of the fundamental policy of Indian law that recognises that a company is an independent juristic person. DECISION HELD BY COURT:The petition was allowed and the impugned award to the extent that the petitioner was held liable for the awarded amounts, was set aside.The parties were left to bear their own costs. The petition was allowed and the impugned award to the extent that the petitioner was held liable for the awarded amounts, was set aside. The parties were left to bear their own costs.

Mr Ashish Dholakia with Mr D. Kishore Mr Gautam Bajaj Ms Raji Joseph and Mr N. P. Rakesh. Mr Aly Mirza for Respondent No.1. Mr Jaimon Andrews for Respondent No.2. IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:16.05.2017 SUDHIR GOPI Petitioner Respondents O.M.P.22 2016 INDIRA GANDHI NATIONAL OPEN UNIVERSITY AND ANR. Advocates who appeared in this case: For the Petitioner For the Respondents HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J I.A. No. 1239 2016 present petition is condoned. The application stands disposed of. O.M.P.22 2016 For the reasons stated in the application the delay in re filing the Shri Sudhir Gopi Chairman and Managing Director of Universal Empire Institute of Technologyhas filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996 22 2016 Act‟) for setting aside the arbitral award dated 20.07.2015 delivered by the sole arbitrator. By the impugned award a sum of USD 664 070 along with pre award and future interest at the rate of 12% per annum has been awarded in favour of respondent no.1 and against Shri Sudhir Gopiand UEITjointly and severally. The impugned award was rendered in the context of the disputes that had arisen in relation to an agreement dated 16.11.2005 as renewed by an agreement dated 01.05.2009 entered into between IGNOU and UEIT. UEIT had also made an application under Section 34 of the Act challenging the impugned award 25 2016) which was rejected by this Court by an order dated 14.09.2016. The limited controversy involved in the present petition is whether the impugned award to the extent that it makes Mr Sudhir Gopi jointly and severally liable along with UEIT for the amount awarded in favour of IGNOU is sustainable considering that Mr Sudhir Gopi was not a signatory to the agreement in question. UEIT is a limited liability company and it is Mr Gopi s case that although he is the principal shareholder as well as the Chairman and Managing Director of UEIT he is not personally liable for the contractual liability of UEIT. Further that he is not a party to the arbitration agreement and therefore the impugned award inasmuch as it holds him liable is without jurisdiction. Briefly stated the relevant facts necessary to address the aforesaid controversy are as under: O.M.P.22 2016 IGNOU is a statutory university established under the Indira Gandhi National Open University Act 1985. It is stated that IGNOU has developed educational programmes for distant learning which are offered in over 35 countries across the globe. 7.2 UEIT is company incorporated under the applicable laws in Dubai United Arab Emiratesof IGNOU on the terms and conditions as indicated in the said agreement. Essentially UEIT was to run a centre in Dubai for implementing IGNOU‟s distant learning programme and enrol students in different programmes offered by IGNOU. UEIT was to advertise the programmes at its own cost and admit students conforming to the eligibility criteria as prescribed by IGNOU. In terms of the agreement the parties thereto that is UEIT and IGNOU agreed to share the fees collected from the students enrolled under the various programmes run by IGNOU. The initial term of the said agreement was for three years. However IGNOU and UEIT entered into another agreement dated 01.05.2009 on similar terms thus effectively renewing the earlier agreement for a further period 22 2016 registration of students after July 2008 remained outstanding and only certain ad hoc payments were made. 7.4 UEIT has its own tale of woe. UEIT inter alia claimed that IGNOU had enrolled students from other institutes that were operating illegally outside the trade free zone. It was contended that the expenditure incurred to run a centre in a trade free zone was higher than that required to operate such institutes outside the trade free zones. Thus UEIT was adversely affected by IGNOU enrolling students from such illegal institutes. It was also claimed that IGNOU withheld the certificates and mark sheets and informed the students that the operations at centre had been temporarily suspended. This caused severe harm to UEIT and other institutions run by the same management. IGNOU terminated the Agreement with UEIT and encouraged the enrolled students to migrate to other PIs. IGNOU also invoked the arbitration clause. Before the arbitral tribunal IGNOU filed its statement of claims inter alia claiming an aggregate sum of USD 14 48 046 which included a sum of USD 6 63 653 on account of unpaid invoices a sum of USD 417 on account of demand drafts which were not encashed an amount of USD 1 60 000 on account of loss of earning and USD 5 00 001 on account of loss of goodwill. 7.7 Mr Gopi and UEIT filed a reply to the statement of claims before the arbitral tribunal on 30.04.2012. Simultaneously they also filed counter claims claiming a sum of USD 66 15 498 which included compensation for business loss quantified at USD 44 91 671 and compensation for loss of reputation quantified at USD 20 00 000. O.M.P.22 2016 7.8 The arbitral tribunal passed an order on 30.04.2012 directing UEIT to file a statement inter alia clarifying the nature and character of UEIT and whether the signatory of the reply was authorised to represent UEIT. In compliance with the aforesaid order UEIT filed an additional statement on 15.05.2012 inter alia stating that UEIT was a Limited Liability Company and was incorporated on 20.05.2003 under United Arab Emirates Law of UEIT and his wife Mrs Rashmi Sudhir Gopi was also a director of UEIT. It was confirmed by UEIT that Mr Gopi was representing the said company as its Managing Director and in terms of resolution passed by UEIT authorising him to do so. It was also clarified that the reply to the statement of claims and the counter claims was filed by O.M.P.22 2016 Mr Sudhir Gopi on behalf of UEIT in his capacity as a Managing Director and not in his personal capacity. 7.10 UEIT claimed that the statement of claims filed by IGNOU was bad for mis joinder of parties as Mr Sudhir Gopi was not a party to the Agreement or the arbitration agreement” was framed. 7.13 The arbitral tribunal awarded a sum of USD 664 070in favour of IGNOU against Mr Gopi and UEIT jointly and severally. In addition the arbitral tribunal also awarded interest at the rate of 12% per annum on the awarded amount from 03.01.2012 to the date of the award and from the date of the award till full realisation of the amount. The arbitral tribunal also awarded the cost of proceedings quantified at ₹1 00 000 . O.M.P.22 2016 8. Mr Ashish Dholakia learned counsel appearing for Mr Gopi contended that the impugned award was without jurisdiction to the extent that Mr Gopi was also made liable for the awarded amounts. He contended that an arbitral tribunal does not have the power to proceed against any person who was not a signatory party to the arbitration agreement Ltd.: EA(OS) No. 340 2013 in Ex.P.280 2012 decided on 17.03.2017 as well as the decision of the Bombay High Court in Oil and Natural Gas Corporation Ltd. v. Jindal Drilling and Industries Ltd.: SCC OnLine Bom 1707 and Great Pacific NavigationCorporation Limited v. M V Tongli Yantai: 2011 LawSuit2095 in support of his contention. 9. Mr Aly Mirza learned counsel appearing for IGNOU countered the aforesaid submissions. He submitted that Mr Gopi held 99 shares out of the 100 shares issued by UEIT and was the sole in charge of running its affairs. He contended that it was plainly evident from the conduct of Mr Gopi that he had made no distinction between himself and UEIT. He pointed out that certain cheques issued to IGNOU in discharge of the obligations under the Agreement were issued by Mr Sudhir Gopi. He contended that Mr Gopi was running the business under the façade of UEIT and essentially there was no difference between Mr Sudhir Gopi and UEIT. For all intents and purposes they were one and the same. He submitted that in the given facts O.M.P.22 2016 the decision of the arbitral tribunal to hold Mr Sudhir Gopi an alter ego of UEIT could not be faulted. 10. He next contended that prior to commencement of arbitral proceedings IGNOU had issued a notice dated 19.10.2011 to UEIT and Mr Sudhir Gopi and the same was responded to by Mr Gopi without taking any objection as to the notice being addressed to him. Similarly Mr Gopi and UEIT had filed a common reply to the statement of claims and had also jointly filed counter claims. He submitted that the counter claims were largely based on loss of goodwill allegedly suffered by Mr Gopi and other institutions run by him. Thus Mr Gopi could not now contend that he was not a party to the arbitration agreement. He submitted that even in the present petition Mr Gopi has prayed that the counter claims made be allowed. He relied on the decision of the Supreme Court in Union of India UOI) v. M s. Pam Development Pvt. Ltd.:1 SCR 1069 in support of his contention that Mr Gopi having participated in the arbitration proceedings was precluded from challenging the jurisdiction of the arbitral tribunal at a subsequent stage. He also relied upon the decision of the Supreme Court in Purple Medical Solutions Pvt. Ltd. v. MIV Therapeutics Inc. and Ors.: 2015SCALE 127 wherein the court had allowed an application under Section 11(6) of the Act and appointed the arbitrator by lifting the corporate veil. He also referred to the decision of a Coordinate Bench of this Court in Ram Kishan and Sons v. Freeway Marketing (P) Ltd. and Anr.: 2004 ArbLR 508 whereby this Court had found fault with the arbitral tribunal in not lifting the corporate veil and had therefore allowed the application for setting aside the arbitral award as being opposed to public policy. O.M.P.22 2016 Reasons and Conclusion “Like consummated romance arbitration rests on consent”1. The agreement between parties to resolve their disputes by arbitration is the cornerstone of arbitration. The arbitral tribunal derives its jurisdiction from the consent of partiesof the Act an arbitration agreement must be in writing. By virtue of Section 7(4) of the Act an arbitration agreement is in writing if it is contained in “(a) a document signed by parties an exchange of letters telex telegrams or other means of telecommunication including communication through electric means which provide a record of the agreement oran exchange of statements of claim and defence in which existence of an agreement is alleged by one party and not denied by the other”. The term “party” is defined under Section 2(1)(h) of the Act to mean a party to an arbitration agreement. In the present case admittedly the Agreement is not signed by Mr Sudhir Gopi in his personal capacity. None of the communications produced provides a record of an agreement between Mr Sudhir Gopi and IGNOU to arbitrate. The arbitral tribunal has also not proceeded on the basis of any such agreement. 1. O.M.P.22 2016 “NON SIGNATORIES AND INTERNATIONAL CONTRACTS: AN ARBITRATOR’S DILEMMA” By Prof. William W. Park. It was contended on behalf of IGNOU that since Mr Sudhir Gopi had filed counter claims jointly with UEIT his consent to arbitrate must be inferred. However that is not the basis on which the arbitral tribunal has proceeded against Mr Sudhir Gopi. The contention that Mr Gopi s consent to arbitrate must be inferred from his preferring counter claims is also unmerited. This is so because in compliance with the directions of the arbitral tribunal issued on 30.04.2015 both UEIT and Mr Gopi had clarified that Mr Gopi had preferred the counter claims on behalf of UEIT and not in his personal capacity. Further both UEIT and Mr Gopi had resisted the claims on the ground that there was mis joinder of parties to the extent that Mr Gopi had been arrayed as a respondent in the arbitral proceedings. 15. The jurisdiction of the arbitrator is circumscribed by the agreement between the parties and it is obvious that such limited jurisdiction cannot be used to bring within its ambit persons that are outside the circle of consent. The arbitral tribunal being a creature of limited jurisdiction has no power to extend the scope of the arbitral proceedings to include persons who have not consented to arbitrate. Thus an arbitrator would not have the power to pierce the corporate veil so as to bind other parties who have not agreed to arbitrate. 16. There may be cases where courts can compel non signatory(ies) to arbitrate. These may be on grounds of implied consent and or disregard of corporate personality. In cases of implied consent the consent of non signatory(ies) to arbitrate is inferred from the conduct and intention of the parties. Thus in cases where it is apparent that the non O.M.P.22 2016 signatory(ies) intended to be bound by the arbitration agreements the courts have referred such non signatories to arbitration. 17. The second class of cases is where a corporate form is used to perpetuate a fraud to circumvent a statute or for other misdeeds. In such cases the courts have disregarded the corporate façade and held the shareholders directorsaccountable for the obligations of the corporate entity. In Chloro Controls India Private Limited v. Severn Trent Water Purifications Inc. & Others: 2013 SCC 641 the Supreme Court had explained the above principle in the following words: Various legal basis may be applied to bind a non signatory to an arbitration agreement. The first theory is that of implied consent third party beneficiaries guarantors assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and to a large extent on good faith principle. They apply to private as well as public legal entities. The second theory includes the legal relations apparent doctrines of agent principal authority piercing of veil joint venture relations succession and estoppel. They do not rely on the parties‟ intention but rather on the force of the applicable law." It is also necessary to emphasize that whether a court will compel any person to arbitrate would have to be examined in the context of the specific provisions of the applicable statute. It is almost universally accepted that dispute resolution by arbitration must be encouraged however the courts determine the question whether an individual or an entity can be compelled to arbitrate guided by the domestic law and the O.M.P.22 2016 judicial standards of their country. In this respect the laws of most countries are not identical and the case law emanating from courts in other countries cannot be readily followed. 20. The courts would undoubtedly have the power to determine whether in a given case the corporate veil should be pierced and the persons behind the corporate façade be held accountable for the obligations of the corporate entity. However as stated earlier an arbitral tribunal has no jurisdiction to lift the corporate veil its jurisdiction is confined by the arbitration agreement which includes the parties to arbitration and it would not be permissible for the arbitral tribunal to expand or extend the same to other persons. 21. A similar view was also expressed by the Bombay High Court in Oil and Natural Gas Corporation Ltd. v. Jindal Drilling and Industries Limited: 2015 SCC OnLine Bom 1707 in the following words: “47. The petitioners had canvassed before the arbitral tribunal that the arbitral tribunal shall lift the corporate veil to find out that the said DEPL and the respondents herein were forming part of the said Jindal Group and were one and the same entity and thus the respondents were liable for the liabilities of the said DEPL. In my view the arbitral tribunal has no power to lift the corporate veil. Only a Court can lift the corporate veil of a company if the strongest case is made out. In my view the prayer of the petitioners for lifting the corporate veil of the said DEPL was itself not maintainable in the arbitration proceedings.” In MV Tongli YantaiVazifdar J sitting as a single judge of the Bombay High Court had observed that: O.M.P.22 2016 “ ..In whatever other circumstances the corporate veil may be lifted it ought not to be in arbitration proceedings even in principle. To permit such course would be contrary to the 1996 Act….The mere fact that a party is an alter ego of another would not predicate an agreement to refer disputes to arbitration by the one which is not a party to the arbitration agreement. Courts have lifted the corporate veil to confer benefit or to foist liability upon a party. An arbitration reference stands upon a different footing. It is a mode of adjudication of disputes dependent upon an agreement between parties”. This decision in MV Tongli Yantaiwas overturned by the division bench of the Bombay High Court albeit on another point. And the Supreme Court by consent of parties set aside both the decision of the Single Judge as well as the Division Bench. Thus this decision does not have any precedent value but this court respectfully concurs with the view expressed therein. 23. This court has also held that an arbitral tribunal cannot lift the corporate veil in the case of Balmer LaurieLimited: 2010SCC 306. In that case Subuthi Finance Ltd.the promoter of appellant companyentered into an agreement with WescareLtd. Wescare) for sale and purchase of certain equipments. Wescare and its subsidiary were described as "seller wescare" and Subuthi and its nominee were described as "buyer". The agreement also disclosed Subuthi to be the promoter of Indowind. The agreement between Subuthi and Wescare included an arbitration clause. O.M.P.22 2016 26. Wescare sold certain Wind Electric Generators Indowind which was paid by Indowind partly in cash and partly by allotment of shares. Certain disputes arose between Wescare on one hand and Subuthi and Indowind on the other. Wescare filed petitions under Section 9 of the Act for interim measures before Madras High Court which were dismissed on the ground that Indowind had neither signed nor ratified the agreement between Subuthi and Wescare. Thereafter Wescare filed a petition under Section 11(6) of the Act for appointment of a sole arbitrator to adjudicate the disputes that had arisen in respect of the agreement. Both Subuthi and Indowind resisted the petition. Subuthi claimed that the agreement did not contemplate any transaction between Wescare and itself and no transaction had taken place between them and therefore there was no cause of action or any arbitrable dispute between them. Indowind resisted the said petition on the ground that it was not a party to the agreement in question. The Chief Justice of Madras High Court allowed the application under Section 11 of the Act and appointed a sole arbitrator. Indowind challenged the same before the Supreme Court. In this case there was no dispute that the parties were closely related. Both Indowind and Subuthi had common shareholders and common board of directors. It was also not in dispute that the equipment was purchased by Indowind and not Subuthi. However the Supreme Court allowed the Indowind s appeal and set aside the order of the Madras High Court appointing an arbitrator in respect of the claims of Wescare against Indowind for the reason that Indowind was not a party to the Agreement. 27. The Supreme Court explained that “It is fundamental that a provision for arbitration to constitute an arbitration agreement for the O.M.P.22 2016 purpose of Section 7 should satisfy two conditions:it should be between the parties to the dispute andit should relate to or be applicable to the dispute." The Court further held that Subuthi and Indowind were two independent companies and "each company is a separate and distinct legal entity and the mere fact that two companies have common shareholders or common Board of Directors will not make the two companies a single entity. Nor will existence of common shareholders or Directors lead to an inference that one company will be bound by the acts of the other.” 28. The decision of the Supreme Court in the case of M s. Pam Development Pvt. Ltd. has no application in the facts of the present case. In that case there was no dispute as to the existence of the arbitration agreement. The only dispute raised by the appellantwas that the arbitrator was not appointed in accordance with the agreement and the disputes entertained were excepted matters and thus not arbitrable. It is material to mention that the arbitrator was appointed by the High Court under Section 11(6) of the Act and the said decision was not challenged. No objection as to the jurisdiction was taken before the arbitral tribunal. The appellant participated in the arbitration proceedings. It also preferred counter claims and led evidence in defence. It is in these facts that the Supreme Court concluded that the appellant had waived its right to object to the jurisdiction of the arbitrator. 29. The decision in Purple Medical Solutions Pvt. Ltd. was rendered by the Supreme Court in an application filed under Section 11(6) of the Act. In that case serious allegations of fraud were made against respondent no.2 who was not a party to the agreements in question. The said allegations remained uncontroverted. Thus the Supreme O.M.P.22 2016 Court found that the relevant facts justified lifting of corporate veil and referring respondent no. 2 to arbitration. There is no quarrel with the proposition that a court could in given cases lift the corporate veil. This decision is not an authority for the proposition that such power could be exercised by an arbitral tribunal. 30. The decision in the case of Freeway Marketing(P) Ltd and Anr.turned on its own facts. In that case respondent no.2 was not a party to the arbitration agreement but had consented for reference of disputes to arbitration in proceedings filed before this court and had also undertaken to this court for being liable for any payment that may be found due against respondent no.1. However the arbitrator held that respondent no.2 was not a party to the agreement and was not personally liable for the claims made by the petitioner. Noting the facts of the case and finding the decision of the arbitrator to be unsustainable the Hon‟ble single judge who is coincidently also the sole arbitrator in this case) set aside the arbitral award under Section 34 of the Act. This court has some reservations as this decision however notwithstanding such reservations it is apparent that it is not applicable on the facts of this case as indicated above. It was also suggested by Mr Mirza that the view taken by the arbitral tribunal is a plausible one and therefore even if it is considered erroneous this court would refrain from interfering with the same. This contention is also unmerited. Undoubtedly the legislative policy in arbitration is one of non interference by the courts and it is well settled that even if the view of the arbitral tribunal is erroneous the same cannot be set aside unless it is found that the same is perverse patently illegal or otherwise in conflict O.M.P.22 2016 with the fundamental policy of Indian Law. This court does not sit as an appellate court over the decision of the arbitral tribunal and the scope of interference with an arbitral award is confined to the grounds as set out in Section 34 of the Act. 32. Having stated the above a clear distinction must be made between the errors which are within the jurisdiction of the arbitral tribunal and those that are not. Plainly the arbitral tribunal is the final authority on determining the questions of fact and unless the findings are perverse or fail the test of reasonableness on the anvil of the wednesbury principle no interference would be warranted. Similarly even questions of law falling within the scope of reference would be binding on parties. As an illustration the arbitral tribunal has jurisdiction to interpret the terms of the contract and even if such an interpretation is erroneous the same would nonetheless not warrant any interference by a court unless of course it is perverse or patently illegal SCC 6 and Rashtriya Ispat Nigam Ltd. v Dewan Chand Ram Saran: 2012SCC 306). However when it comes to a question of jurisdiction there is no ground for sustaining an award which suffers from a jurisdictional error. As indicated above the jurisdiction of the arbitral tribunal is circumscribed by the agreement between the parties. Thus if an arbitral award runs contrary to the express agreement between the parties it would be without jurisdiction and susceptible to challenge. As an illustration if a contract between the parties proscribes award of interest an arbitral award for pre award interest would be liable to be set aside even though the same may be equitable SCC 36). O.M.P.22 2016 33. The legislative policy of non interference does not extend to errors of jurisdiction. Therefore a party which assails an arbitral award on the ground that it is without jurisdiction will have full right to make good its case and the view of the arbitral tribunal would at best be considered as a prima facie view which would be subject to full examination in proceedings under Section 34 of the Act. 34. As stated earlier the award which is wholly without jurisdiction would be of little value. In the present case Mr Sudhir Gopi is not a signatoryto the arbitration agreement this is fundamental condition for an arbitral tribunal to assume jurisdiction in so far as Mr Gopi is concerned. In absence of an arbitration agreement the arbitral award in so far as Mr. Gopi is concerned is without jurisdiction and not binding on him. In the case of Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs Government of Pakistan: EWHC 1901 (U.K.) the U.K. Supreme Court upheld the decision of the commercial court not to enforce an arbitral award delivered by a French arbitral tribunal against the Government of Pakistan. In that case the Government of Pakistan was a party to a Memorandum of Understanding in terms of which Dallah Real Estate and Tourism Holding Company agreed to purchase land to provide accommodation in Mecca to pilgrims from Pakistan. The Government of Pakistan thereafter created a trust which subsequently entered into a formal agreement with Dallah. The arbitral tribunal held that the Trust was only an alter ego of the Government of Pakistan and awarded in favour of Dallah and against the Government of Pakistan. In the proceedings that were O.M.P.22 2016 instituted in United Kingdom for the enforcement of the arbitral awardthe High Court of Justice declined enforce the award against Government of Pakistan as the Government of Pakistan was not a signatory to the agreement between Dallah and the Trust in question. The U.K. Supreme Court upheld the decision of the commercial court. The U.K. Supreme Court held that the "tribunal’s own view of its jurisdiction has no legal or evidential value when the issue is whether the tribunal had any legitimate authority in relation to the Government at all”. 36. The Court held that the New York Convention "may give limited prima facie credit to apparently valid arbitration awards..But that is as far is goes in law... This is not to say that a court seised of an issue under Article V(1)(a) and s.103(2)(b) will not examine both carefully and with interest the reasoning and conclusion of an arbitral tribunal which has undertaken a similar examination." 37. Although the aforesaid decision was rendered in proceedings for enforcement of a foreign award the rationale for the view is compelling. An arbitral tribunal being a creature of limited jurisdiction cannot in exercise of that jurisdiction extend the same. An error relating to a question of jurisdiction would be fatal to the award and the arbitral tribunal s findings in that regard would be of no value. Thus when it comes to the question of jurisdiction the final word does not rest with the arbitral tribunal. In view of the above it is not necessary to examine whether the decision of the arbitral tribunal to lift the corporate veil falls foul of Section O.M.P.22 2016 34 of the Act on merits as well. Nonetheless for the sake of completeness this court has also examined whether the decision to lift corporate veil is otherwise sustainable. 39. The solitary reason for the arbitral tribunal to hold that Mr Sudhir Gopi was a party to the Agreement is that he held almost entire shares of UEIT thus exercising absolute control over the affairs of UEIT. The entire business of UEIT was run by Mr Sudhir Gopi. The arbitral tribunal held that Mr Sudhir Gopi was the “face and a cloak” of UEIT for running the business and therefore was a party to the arbitration agreement. Consequently the arbitral tribunal held that Mr Gopi and UEIT were jointly and severally liable for the liabilities of UEIT. 40. As stated above arbitration is founded on consent between the parties to refer the disputes to arbitration. The fact that an individual or a few individuals hold controlling interest in a company and are in charge of running its business does not ipso jure render them personally bound by all agreements entered into by the company. 41. Arbitration agreement can be extended to non signatories in limited circumstances first where the Court comes to the conclusion that there is an implied consent and second where there are reasons to disregard the corporate personality of a party thus making the shareholder(s) answerable for the obligations of the company. In the present case the arbitral tribunal has proceeded to disregard the corporate personality of UEIT. The arbitral tribunal has lifted the corporate veil only for the reason that UEIT s business was being conducted by Mr Sudhir Gopi who was also the beneficiary of its business being the absolute shareholder22 2016 a single share held by Mr Fikri) of UEIT. This is clearly impermissible and militates against the law settled since the nineteenth century. Any party dealing with the limited liability company is fully aware of the limitations of corporate liability. Business are organised on the fundamental premise that a company is an independent juristic entity notwithstanding that its shareholders and directors exercise the ultimate control on the affairs of the company. In law the corporate personality cannot be disregarded. Undisputedly there are exceptions to this rule and the question is whether this case falls within the scope of any of the exceptions. 42. A corporate veil can be pierced only in rare cases where the Court comes to the conclusion that the conduct of the shareholder is abusive and the corporate façade is used for an improper purpose for perpetuating a fraud or for circumventing a statute. It is only in exceptional cases that a court would lift the corporate veil. In Life Insurance Corporation of India v. Escorts Ltd. and Ors.: 1986) 1 SCC 264 the constitution bench of the Supreme Court explained that a corporate veil may be lifted where a statute itself requires lifting of corporate veil or in cases of fraud or where a taxing statute or a beneficent statute is sought to be circumvented. 44. Courts have the power to pierce the corporate veil if the corporate structure has been built only to evade taxes. 22 2016 under: realities behind the legal facade. For example the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation or to perpetrate fraud”. In Delhi Development Authority v. Skiper Construction Company P) Ltd. and Another:4 SCC 622 the Supreme Court observed as 28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where therefore the corporate character is employed for the purpose of committing illegality or for defrauding others the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. The fact that Tejwant Singh and members of his family have created several corporate bodies does not prevent this Court from treating all of them as one entity belonging to and controlled by Tejwant Singh and Family if it is found that these corporate bodies are merely cloaks behind which lurks Tejwant Singh and or members of his family and that the device of incorporation was really a ploy adopted for committing illegalities and or to defraud people." 46. An abuse of corporate form is the bare minimum pre condition that must be met before the corporate entity can be disregarded to impose the obligations of such entity on its shareholders directors. 47. As stated earlier in the present case there is no foundation that the corporate façade of UEIT was used by Mr Sudhir Gopi to perpetuate a fraud. Mere failure of a corporate entity to meet its contractual obligations O.M.P.22 2016 is no ground for piercing the corporate veil. Although the arbitral tribunal has mentioned in the passing that UEIT was used for improper purpose however there is no foundation for such observation. It was never IGNOU s case that UEIT was set up or used to perpetuate a fraud on IGNOU and at any rate no particulars that are required to be pleaded to set up a case of fraud to indicate that a fraud had been perpetuated were pleaded by IGNOU. Thus the decision of the arbitral tribunal to pierce the corporate veil is fundamentally flawed. It falls foul of the fundamental policy of Indian law that recognises that a company is an independent juristic person. 48. Mr Mirza had earnestly contended that the alter ego doctrine would be applicable and the arbitral tribunal had proceeded on the basis of the said doctrine. This contention is bereft of any merit. The alter ego doctrine is conceptually no different from the concept of piercing of corporate veil. These doctrines are applied to disregard corporate personality only in cases where it is found that corporate form is being used to perpetuate a fraud circumvent statute or for a wrongful purpose. The alter ego doctrine is essentially to prevent shareholders from misusing corporate laws by a device of a sham corporate entity for committing fraud. In cases where it is established that an individual(s) and or other entities have used a corporate form for a wrongful purpose to perpetuate a fraud circumvent a statute or some other misdeeds the Courts may decide to ignore the corporate personality and hold the directors shareholders and or officersresponsible for the obligations of the corporate entity. However as stated earlier in the facts of the present case there is no ground to disregard the corporate form of UEIT. O.M.P.22 2016 MAY 16 2017 In view of the above the petition is allowed and the impugned award to the extent that the petitioner is held liable for the awarded amounts is set aside. 51. The parties are left to bear their own costs. VIBHU BAKHRU J O.M.P.22 2016

Appellants given benefit of doubt due to several discrepancies with regard to the evidence, conviction and sentence set aside: The High Court of Chhattisgarh

The finding of the Trial Court is not in accordance with the evidence available on record. All the Appellants are entitled to get benefit of doubt. The aforesaid was established by the High Court of Chhattisgarh while adjudicating the case of Kapil Das Mahant & Ors. v. State of Chhattisgarh [Criminal Appeal No.1292 of 2016] which was decided upon by a single judge bench comprising Justice Arvind Singh Chandel on 18th October 2021. The brief facts of the case are as follows. The FIR was lodged by Complainant against 3 unknown persons only, but in their Court statements, both Complainants deposed that at the time of incident when they reached near the jungle nahar, there all the Appellants (total 4 persons) prevented them and looted one mobile phone of Nokia brand from Mahendra Agrawal and 2 numbers of gold tops from Pooja Agrawal (PW2). Both these witnesses admitted the fact during their cross-examination that 2 accused persons had covered their faces with cloth and, therefore, they were unidentifiable. Tahsildar Shabab Khan (PW4) had arranged Test Identification Parade of the accused persons in District Jail, Janjgir This witness admitted the fact that the Test Identification Parade Reports not contain signatures of identifiers Mahendra Agrawal (PW1) and Pooja Agrawal (PW2). Mahendra Agrawal (PW1) and Pooja Agrawal (PW2) have also admitted the fact that during the Test Identification Parade, police officials were present along with them and both these witnesses identified the accused persons as told by the present police officials. The instant appeals have been preferred against the judgment passed by the 2nd Additional Sessions Judge whereby the present Appellants have been convicted and sentenced. The court perused the facts and arguments presented. It was of the opinion that “The necessary sanction for prosecution under Section 39 of the Arms Act has not been obtained. Even any report of any armorer or ballistic expert has not been produced nor have they been examined and, therefore also, the offences alleged under the Arms Act against Appellants Sharad Goutam and Radheshyam Kashyap are not proved. The finding of the Trial Court is not in accordance with the evidence available on record. All the Appellants are entitled to get benefit of doubt. 15. Consequently, all the appeals are allowed. The impugned judgment of conviction and sentence is set aside. All the Appellants are acquitted of the charges framed against them.”

NAFRHIGH COURT OF CHHATTISGARH BILASPURCriminal Appeal No.12916Judgment Reserved on : 22.9.2021Judgment Delivered on : 18.10.2021Kapil Das Mahant son of Roopdas Mahant aged about 20 years resident of Village Karma Police Chowki Pantora Police StationBaloda District Janjgir Champa Chhattisgarh Appellantversus State of Chhattisgarh through Station House Officer Police StationBaloda District Janjgir Champa Chhattisgarh RespondentCriminal Appeal No.17417Kamal Chandra son of Late Shri Ganpat Chandra aged about 18years resident of Village Sukhada Police Station Dabhara DistrictJanjgir Champa Chhattisgarh Appellantversus State of Chhattisgarh through the Station House Officer Police StationBaloda District Janjgir Champa Chhattisgarh RespondentCriminal Appeal No.57191.Sharad Goutam son of Satyaprakash Goutam aged about 27 years resident of Village Sarawa Police Station Shikarpur District BulandCity U.P.2.Radheshyam Kashyap son of Shivram Kashyap aged about 33 years resident of Village Barbhatha Police Station Baloda District Janjgir Champa Chhattisgarh Appellantsversus State of Chhattisgarh through Police Station Baloda District Janjgir Champa Chhattisgarh Respondent For Respective Appellants : Shri Vipin Singh Shri Rishi Rahul Soni andShri Akath Kumar Yadav AdvocatesFor Respondent State : Shri Akhtar Hussain Panel Lawyer 2Hon ble Shri Justice Arvind Singh ChandelC.A.V. JUDGMENT1.Since all the three appeals arise out of a common judgment theyare decided together. 2.The instant appeals have been preferred against the judgmentdated 29.8.2016 passed by the 2nd Additional Sessions Judge Janjgir Champa in Sessions Trial No.516 whereby thepresent Appellants have been convicted and sentenced as under: AppellantConvictionSentenceAll the Appellants Under Section392 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years and fine ofRs.1 000 with defaultstipulation Under Section397 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years Under Section398 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years Appellant SharadGoutamof theArms Act Rigorous Imprisonmentfor 3 years and fine ofRs.500 with defaultstipulationAppellant RadheshyamKashyapof theArms Act Rigorous Imprisonmentfor 1 year and fine ofRs.500 with defaultstipulationThe jail sentences are directed to run concurrently3.Prosecution case in brief is that on 4.1.2016 in the afternoon atabout 12:30 O’clock Complainant Mahendra Agrawaland 3his wife Pooja Agrawaland their children were returning on amotorcycle. When they reached near jungle nahar bridge 3unknown persons came there on a motorcycle overtook andprevented them. They showed them a kattalodged First Information Reportsold the looted gold tops to co accused 4Purushottam Sonivide Ex.P11.During the course of investigation all the accusedpersons Appellants were duly identified by Complainant MahendraAgrawaland his wife Pooja Agrawalvide Ex.P12 andP13. On completion of the investigation a charge sheet was filed.Charges were framed by the Trial Court. 4.In support of its case the prosecution examined as many as 13witnesses. In examination under Section 313 of the Code ofCriminal Procedure the accused persons Appellants denied theguilt and pleaded innocence. No witness has been examined intheir defence. 5.On completion of the trial the Trial Court convicted and sentencedthe accused perspms Appellants as mentioned in the secondparagraph of this judgment. Hence the present appeals. 6.Learned Counsel appearing for the respective Appellants jointlysubmitted that without there being sufficient evidence on recordagainst the Appellants the Trial Court has wrongly convicted them.The incident took place on 4.1.2016 but the First InformationReportwas lodged by Complainant Mahendra Agrawal(PW1) on 10.1.2016 when the Appellants were caught in CrimeNo.16. Thereafter in the present case also i.e. in CrimeNo.116 to falsely implicate the Appellants a false andfabricated First Information Reportwas lodged by 5Complainant Mahendra Agrawalon 11.1.2016. It wasfurther submitted that according to the FIR3 unknownpersons looted the articles from victims Mahendra Agrawalbut the charge sheet was filed against 4accused persons for the alleged commission of loot. During theTest Identification Parade accused persons Sharad and Kapil wereidentified by Complainant Mahendra Agrawalvide Ex.P12and accused persons Sharad and Radheshyam were identified byPooja Agrawalvide Ex.P13 but the Test IdentificationParade Reportsdo not bear signatures ofComplainant Mahendra Agrawaland his wife Pooja Agrawal(PW2). Other accused persons were not identified by MahendraAgrawal and Pooja Agrawal. Both Mahendra AgrawalandPooja Agrawalcategorically admitted the fact that at the timeof the test identification parade police officials were also presentalong with them and they identified the accused persons as told bythe police officials. It was further submitted that the TestIdentification Parade Reportsdo not bearsignatures of Complainant Mahendra Agrawaland his wifePooja Agrawaland therefore the whole Test IdentificationParade is doubtful. Though at the time of recording of theirstatements in the Court both Mahendra Agrawaland PoojaAgrawalidentified all the Appellants in their Courtstatements they have admitted the fact that at the time of incidenttwo accused persons had covered their faces with cloth. But despite that they identified the Appellants in the Court and therefore also the identification of the accused persons Appellants 6by Complainant Mahendra Agrawal and his wife Pooja Agrawalduring the course of recording of their statements in the Court isdoubtful. It was further submitted that though in the instant caseone mobile phone of Nokia brand is shown to be seizedbut accused Purushottam Soni fromwhich said gold tops were seized has been acquitted by the TrialCourt and therefore the said gold tops were looted by any of theAppellants at the time of alleged incident is not established. Finally it was argued that looking to the evidence adduced by theprosecution the offences alleged against the Appellants are notduly proved and the Appellants are entitled to get benefit of doubt. 7.Learned Counsel appearing for the State Respondent supportedthe impugned judgment of conviction and sentence.8.I have heard Learned Counsel appearing for the parties andperused the record including the statements of the witnesses withdue care. 9.As regards the present incident which took place on 4.1.2016 it isnot in dispute that the First Information Reportwas lodgedby Complainant Mahendra Agrawalbelatedly on 11.1.2016. 7The FIRwas lodged by Complainant Mahendra Agrawal(PW1) against 3 unknown persons only but in their Courtstatements both Mahendra Agrawaland his wife PoojaAgrawaldeposed that at the time of incident when theyreached near the jungle nahar there all the Appellantsprevented them and looted one mobile phone of Nokiabrand from Mahendra Agrawaland 2 numbers of gold topsfrom Pooja Agrawalhad arranged Test IdentificationParade of the accused persons in District Jail Janjgir on 18.2.2016vide Ex.P12 and P13. This witness admitted the fact that the TestIdentification Parade Reportsdo not containsignatures of identifiers Mahendra Agrawaland PoojaAgrawaland Pooja Agrawal(PW2) have also admitted the fact that during the Test IdentificationParade police officials were present along with them and boththese witnesses identified the accused persons as told by thepresent police officials. 10.According to the case of prosecution during the course ofinvestigation the looted mobile phone of Nokia brand was seizedvide Ex.P10 on being produced by Appellant Kapil Das. Noidentification of this seized mobile phone was got done byComplainant Mahendra Agrawalfrom Appellant Kapil Daswas the looted mobile phone of Complainant Mahendra Agrawal isnot established. 11.With regard to the seizure of the gold tops according to the case ofthe prosecution the said gold tops were seized from acquittedaccused Purushottam Soni but the seizure witnesses have notsupported the case of the prosecution regarding the seizure. It wasnot established before the Trial Court that acquitted accusedPurushottam Soni received the gold tops from acquitted accusedShantabai and therefore on this ground itself the Trial Courtacquitted Purushottam Soni and Shantabai of the charge framedagainst them under Section 411 of the Indian Penal Code.Therefore it is not established that the said gold tops were receivedby Purushottam Soni from any of the Appellants. 12.It is the further case of the prosecution that at the instance ofaccused Appellant Sharad Goutam 1 country made pistol and 7live cartridges of 315 bore were recovered and seizedfromthe parawat kept behind the house of Puniram Kaushik situated inVillage Kosmanda. Though seizure witnesses Ritesh Kaushik(PW3) and Santosh Kumar Rajwadehave supported theseizure of these articles they have only stated that the country 9made pistol and the cartridges were seized from Appellant SharadGoutam from Village Kosmanda. But the prosecution has notspecified that from which place of Village Kosmanda seizure ofthese articles was made. Both these witnesses are residents ofVillages Baksara and Kanki respectively. No resident of VillageKosmanda has been made a witness nor has it been properlyexplained why this was done so. Even if for the sake of argument it is considered that the country made pistol and the cartridgeswere seized from Appellant Sharad Goutam the country madepistol and the cartridges were in live and running condition there isno examination report of any armorer or any ballistic expert onrecord to this effect nor has any such expert been examined by theprosecution in this regard. Apart from this as required underSection 39 of the Arms Act no prior sanction for prosecution hasbeen obtained from the concerned District Magistrate. 13.With regard to the recovery of the knife according to the case ofthe prosecution the knife was recovered and seizedfromthe house of Appellant Radheshyam situated at Village Barbhatha.Again the seizure witnesses are same i.e. Ritesh Kaushikwho are residents of VillagesBaksara and Kanki respectively. No resident of Village Barbhathahas been made a witness by the prosecution and it has not beenexplained also why this was done so. As stated by seizurewitnesses Ritesh Kaushikand Santosh Kumar Rajwade(PW7) they had put their signatures in the seizure memorandumsin Police Chowki Pantora. Therefore it is not established that the 10knife was seized from Village Barbhatha in presence of thesewitnesses. Even if for the sake of argument it is considered thatany knife was seized from Appellant Radheshyam no examinationreport of the knife given by any expert regarding size of the knifehas been placed before the Court nor was even the knife producedbefore the Court. Therefore the prosecution does not get any helpfrom the recovery and seizure of the said knife. 14.On a minute examination of the above evidence it is clear that theFIRwas lodged against 3 unknown persons but in theirCourt statements Mahendra Agrawaland Pooja Agrawal(PW2) deposed that the offence in question was committed by allthe Appellants in total 4 persons and the charge sheet was filedagainst 4 accused persons for commission of the alleged loot. Intheir Court statements Mahendra Agrawaland PoojaAgrawaladmitted that two accused persons had coveredtheir faces with cloth and therefore they were not identifiable.Despite that both these witnesses identified all the 4 Appellantsduring recording of their statements before the Trial Court. Lookingto the above statements of these witnesses with regard to theidentification of the Appellants are suspicious. With regard to theTest Identification Parade also both these witnesses admitted thatduring the Test Identification Parade police officials were presentalong with these witnesses and they identified the accused personsas told by the present police officials. In addition to this the TestIdentification Parade Reportsdo not containsignatures of these two witnesses. Therefore the Test 11Identification Paradeis also suspicious. Asregards the looted mobile phone of Nokia brand as discussedabove it is not established that the seized mobile phone was thelooted mobile phone. As discussed above the gold tops reached toacquitted accused Purushottam Soni through any of the Appellantsis not established and therefore if any looted article was seizedfrom Purushottam Soni that does not help the case of theprosecution. With regard to the knife and the kattait has already been discussed above that their seizure isalso suspicious. The necessary sanction for prosecution underSection 39 of the Arms Act has not been obtained. Even any reportof any armorer or ballistic expert has not been produced nor havethey been examined and therefore also the offences alleged underthe Arms Act against Appellants Sharad Goutam and RadheshyamKashyap are not proved. The finding of the Trial Court is not inaccordance with the evidence available on record. All theAppellants are entitled to get benefit of doubt.15.Consequently all the appeals are allowed. The impugnedjudgment of conviction and sentence is set aside. All the Appellantsare acquitted of the charges framed against them. Sd JUDGE Gopal

The quantity of contraband recovered from the two accused can be combined for applicability of Section 29 of the NDPS Act: High Court of Delhi

Conspiracy is always hatched in secrecy and it is difficult to obtain direct evidence to establish the same and the acts of various parties to the conspiracy will infer that they were done with reference to common intention and it will only be proved by indirect circumstantial evidence of an impeccable nature and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE TALWANT SINGH in the case of RIDHM RANA vs. STATE (NCT OF DELHI) [CRL.REV.P. 385/2021] on 16.03.2022. The facts of the case are that a secret information was received that one Shanta Kumar was engaged in supply of Charas through his trustworthy driver and he would be sending one consignment of Charas through him to Delhi to the petitioner to be delivered near Fortis Hospital, Vasant Kunj. On the basis of this secret information, when the raiding party reached at the spot, they found two vehicles parked and three persons were talking to each other, later on identified as Rakesh, Ridhm and Sarvesh. Driver Rakesh took out two polythene bags, one of black colour and the other one of white colour from the cabin of the truck and handed over the black polythene bag to the present petitioner and the white polythene bag to Sarvesh. After checking the substance, both of them paid Rs.10,000 each to Rakesh for the said contraband. They were apprehended red handed. On weighing, 750 grams of Charas was found in the polythene bag of the petitioner and the weight of the Charas was 456 grams in the polythene bag recovered from co-accused Sarvesh. The petitioner’s counsel submitted that the alleged recovery from the petitioner is of 750 grams of Charas but the revisionist has been ordered to be charged for total recovery of 1.206 Kgs of Charas, the revisionist is not shown to have any knowledge regarding the quantity of contraband alleged to have been recovered from Sarvesh and at what price. So, the mischief of Section 29 of NDPS Act is not at all attracted and the order of charge deserves to be set aside. It was further submitted that there is nothing on record to show that he had entered into criminal conspiracy with any of his co-accused or with any other person regarding offence of illegal possession of contraband. The respondent’s counsel submitted that the accused persons were found in conscious possession of total 1206 grams of Charas and hence charges under Section 20(c) r/w Section 29 of NDPS Act were rightly framed against the accused, as the said total quantity qualifies as Commercial Quantity. The Court held that there wasn’t sufficient evidence to support the submissions of the prosecution that there was criminal conspiracy amongst all the accused persons and as a result Section 29 and Section 20 (c) of the NDPS Act. The Court observed that “conspiracy is always hatched in secrecy and it is difficult to obtain direct evidence to establish the same and the acts of various parties to the conspiracy will infer that they were done with reference to common intention and it will only be proved by indirect circumstantial evidence of an impeccable nature.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.1996 1. Harihar Singh Yadav @ Harihar Singh 2. Rameshwar Singh Yadav alias Rameshwar Singh Both sons of Bengali Singh Yadav Both resident of village Barahana Police Station Harhi District Buxar. The State of Bihar CRIMINAL APPEALNo. 2596 Radhey Shyam Singh Yadav @ Radhey Shyam Singh son of Rameshwar Singh resident of village Barahana Police Station Harhi District Buxar. ... Appellants ... Respondent ... Appellant ... Respondent The State of Bihar Ms. Surya Nilambari Amicus Curiae Ms. Shashi Bala Verma A.P.P In CRIMINAL APPEALNo. 1996 For the Appellants For the State Mr. Ajay Mishra A.P.P In CRIMINAL APPEALNo. 2596 For the Appellant For the State Mr. Ajay Mishra A.P.P CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR Per: HONOURABLE MR. JUSTICE A. M. BADAR Ms. Surya Nilambari Amicus Curiae Mr. Shashi Bala Verma A.P.P Date : 11 03 2022 Criminal AppealNo.1996 is filed by the appellant original accused no.2 Harihar Singh Yadav and appellant original accused no.3 Rameshwar Singh Yadav whereas Criminal AppealNo.2596 is filed by appellant original Patna High Court CR. APPNo.1996 dt.11 03 2022 accused no.1 Radhey Shyam Singh Yadav. As both these appeals are arising out of the same Judgment they are being decided together by this common Judgment. The appellants are challenging the Judgment and Order dated 16th May 1996 and 17th May 1996 respectively passed in Sessions Trial No.1593 by the learned 1st Additional Sessions Judge Buxar whereby the appellants accused nos.2 and 3 namely Harihar Singh Yadav and Rameshwar Singh Yadav are convicted of the offence punishable under Section 302 read with 34 of the Indian Penal Code and appellant accused no.1 Radhey Shyam Singh Yadav came to be convicted of the offence punishable under Section 302 of the Indian Penal Code. They all are sentenced to suffer imprisonment for life. For the sake of convenience the appellants shall be referred in their original capacity as “an accused” 2. Facts leading to the prosecution of the accused projected from the police report can be narrated thus a). Accused Radhey Shyam Singh Yadav Harihar Singh Yadav and Rameshwar Singh Yadav are resident of village Barahana falling within the jurisdiction of Itahri Police Station of District Buxar. Members of the prosecuting party including the deceased are resident of village Pithan Purwa falling under the jurisdiction of the same police station. Both these villages are situated in the vicinity of each other b). The incident in question allegedly took place on 15.06.1992 in an agricultural field wherein a brick kiln was situated Patna High Court CR. APPNo.1996 dt.11 03 2022 That place was regularly being used by the ladies of the prosecuting party for the purpose of easing themselves. According to the prosecution case at about 07.00 to 07.30 P.M. of 15.06.1992 Sadhna Devialong with her relatives such as P.W.1 Shardha Devi P.W.2 Kausalia Giri P.W.3 Lilavati Devi P.W.4 Kumari Devi P.W.8 Chandravati Devi and others had gone for easing themselves at the said agricultural field wherein the brick kiln was situated. Their house as well as their temple was located near that place which was routinely used for easing by the women of the family of the prosecuting party. When all these women were relieving themselves all accused persons holding guns in their hands came from the eastern direction. Accused Harihar Singh and Rameshwar Singh exhorted to kill Sadhna Devi. Thereupon accused Radhey Shyam Singh fired a bullet from the gun held by him. The bullet hit Sadhna Devi. By trading some distance Sadhna Devi fell down. Other ladies made hue and cry. That is how P.W.7 Birendra Giri and others including P.W.9 Ramdayal Kamkar rushed to the spot. They found Sadhna Devi in an injured condition having sustained bleeding wound at her abdomen. She as well as other ladies disclosed that after firing at Sadhna accused persons flee from the spot. Sadhna Devi was then taken by P.W.7 Birendra Giri and others to the Primary Health Centre where P.W.13 Dr. Sanjay Das examined her and she was then referred to the higher centre. However Sadhna Devi succumbed to the gun shot injury and ultimately post mortem Patna High Court CR. APPNo.1996 dt.11 03 2022 examination on her dead body came to be conducted by P.W.11 Dr Ashish Kumar Goswami of the S.S.P.G. Hospital Varansi on c). In the meanwhile on 15.06.1992 itself at about 10.15 P.M. at Itahri Government Hospital P.W.7 Birendra Giri lodged the F.I.R. in respect of the incident which came to be recorded by P.W.14 Shankar Dayal Pandey of Itahri Police Station. That is how the subject crime came to be registered d). During the course of investigation the Investigating Officer P.W.12 Ramchandra Ram visited the spot of the incident and seized the soil stained with blood. He completed the routine investigation by recording the statement of witnesses and thereafter the charge sheet came to be filed against the accused persons e). The learned trial court on committal of the case framed the charge for the offence punishable under Section 302 read with 34 of the Indian Penal Code as well as under Section 302 of the Indian Penal Code against the accused and as they abjured the guilt they were put to the trial 3. In support of its case the prosecution has examined 14 witnesses. Out of those witnesses the prosecution claimed that P.W.1 Shardha Devi P.W.2 Kausalia Devi P.W.3 Lilavati Devi P.W.4 Kumari Devi and P.W.8 Chandravati Devi are eye witnesses to the incident in question. P.W.6 Lallan Prasad is a formal witness who proved the printed F.I.R. Ext.1. P.W.5 Rajendra Giri and P.W.10 Patna High Court CR. APPNo.1996 dt.11 03 2022 Kashinath Yadav were tendered by the prosecution for cross examination. P.W.7 Birendra Giri is the first informant and P.W.9 Ramdayal Kamkar is a co villager. They both claimed to have heard the oral dying declaration of Sadhna Devi. P.W.11 Dr. Ashish Kumar Goswami had conducted post mortem examination on dead body of Sadhna Devi. P.W.13 Sanjay Das had examined the victim Sadhna Devi at the Primary Health Centre. The learned trial court had summoned Vijay Narain Rai a court witness to prove the F.I.R. as well as the printed F.I.R. Ext.7 and Ext.8 respectively 4. The defence of the accused is that of total denial From cross examination of the prosecution witnesses it was tried to bring on record that deceased Sadhna Devi in past had eloped with accused Radhey Shyan Singh with whom there was having a love affair. She was then brought back. Subsequently she was married to another person just 40 days prior to the incident and therefore the accused persons are falsely implicated in the subject crime 5. Upon hearing the parties by the impugned Judgment and Order the learned trial court was pleased to hold that evidence adduced by the prosecution is sufficient to prove the charge levelled against the accused persons and accordingly they came to be convicted and sentenced as indicated in the opening paragraph of the 6. We heard Ms. Surya Nilambari learned appointed Advocate at sufficient length of time. She argued that P.W.7 Patna High Court CR. APPNo.1996 dt.11 03 2022 Birendra Giri is not an eye witness to the subject crime. By placing reliance on the Judgment of the Division Bench of this Court in State of Bihar vs. Bachesh Kumar Singh 2021(3) PLJR 297 she argued that the prosecution witnesses are not corroborating the version of first informant P.W.7 Birendra by stating that they had disclosed the facts of the incident to the first informant. Therefore version of the first informant is unbelievable. By taking us through the evidence of alleged eye witnesses examined by the prosecution it is argued that the incident took place at least after one and half hours of the sunset in the dark night and there is no evidence regarding source of light at the place of the incident. Evidence regarding previous acquaintance cannot be believed as accused persons are not co villagers of the prosecution witnesses who are ladies doing household works. It is further argued that P.W.1 Shardha Devi and P.W.4 Kumari Devi are married sisters of P.W.7 Birendra Giri. These witnesses were not residing at village Pithan Purwa where the incident took place. It is also pointed out that P.W.3 Lilavati Devi and P.W.8 Chandravati Devi are the ladies who were doing household works and as such they were not in a position to identify accused persons. By pointing out the evidence of Investigating Officer it is argued that prior to the registration of the F.I.R. there was Sanha Entry regarding incident wherein nobody was accused and that Sanha is not forthcoming. By placing the reliance on a Judgment in the matter of Ashoksinh Jayendrasinh Vs. State of Gujarat No.1996 dt.11 03 2022 535 it is argued on behalf of the appellant that the appellants are entitled for acquittal as there is no evidence regarding availability of sufficient light for identification of the accused persons 7. The learned A.P.P. supported the impugned Judgment 8. We have carefully considered the submissions so advanced and also perused the records and proceedings 9. Considering the nature of charge at the outset the prosecution will have to establish that Sadhna Devi died homicidal death in the incident in question. In order to prove the factum of death of Sadhna Devi the prosecution is relying on the evidence of the eye witnesses and the first informant who are her close relatives so also on medical evidence. The factum of death of Sadhna Devi is not disputed by the defence. P.W.1 Shardha Devi P.W.2 Kausalia Giri P.W.3 Lilavati Devi P.W.4 Kumari Devi P.W.7 Birendra Giri and P.W.8 Chandravati Devi have deposed that because of gunshot injury Sadhna Devi died. After the incident of sustaining wound at the field on 15.06.1992 Sadhna Devi was taken to the Primary Health Centre where P.W.13 Dr. Sanjay Das had examined her on 15.06.1992 itself. His report is at Ext.6. As per version of this witness Sadhna Devi was having cut injury on the left side of her abdomen of size 1½” x 1 2” and belly deep. This witness further deposed that there were multiple small charred wound on left and right palm hand and front portion of abdomen of Sadhna Devi Patna High Court CR. APPNo.1996 dt.11 03 2022 P.W.13 Dr. Sanjay Das stated that he reserved opinion in respect of injury no.(i) i.e. cut wound but other injuries were simple in nature The cut injury as per version of this witness was caused by the firearm. This Medical Officer of the Primary Health Centre had referred the victim Sadhna Devi to the Sub Divisional Hospital Buxar. However Sadhna Devi succumbed to the injury suffered by her. On 17.06.1992 P.W.11 Dr. Ashish Kumar Goswami of S.S.P.G Hospital Varansi conducted autopsy on dead body of Sadhna Devi This Autopsy Surgeon found antimortem firearm injuries on left side of abdomen of the dead body. A conical shaped bullet came to be recovered from that injury. P.W.11 then issued Death Certificate at Ext.4 and Post mortem examination report at Ext.3. As per version of this Medical Officer death was due to shock and hemorrhage caused by the bullet injury. This evidence adduced by the prosecution is not shattered at all and as such it needs to be put on record that the prosecution has established that Sadhna Devi died 10. Now let us examine whether the prosecution has proved that in furtherance of their common intention the accused persons had committed murder of Sadhna Devi by firing a bullet at her. The defence itself had attempted to elicit from the prosecution witnesses that because of love relations Sadhna Devi had eloped with accused Radhey Shyam Singh and couple was subsequently brought back. Sadhna Devi was then married to some another person just 40 Patna High Court CR. APPNo.1996 dt.11 03 2022 days before the date of the occurrence. At that time Sadhna Devi had returned from her matrimonial house and was staying with her parental relatives. Evidence on record shows that first informant Birendra Giri was her uncle. P.W.1 Shardha Devi and P.W.4 Kumari Devi were her aunts who had come for her marriage and stayed at their parental house till the date of the incident. P.W.2 Kausalia Giri is their mother. P.W.3 Lilavati Devi and P.W.8 Chandravati Devi are sisters in law of P.Ws. Shardha Devi Kumari Devi and Birendra Giri. Similarly it is brought on record by none else than the defence that all these prosecution witnesses are resident of village Pithan Purwa whereas accused persons are resident of village Barahana which are falling within the jurisdiction of Itahri Police Station From cross examination of P.W.3 Lilavati Devi the defence has brought on record that the said village Barahana is at a distance of just 1 and 1 4 Bigha away from the village Pithan Purwa and more particularly from the place of the incident. These facts which are surfacing on record will have to kept in mind while appreciating the evidence of the prosecution witnesses 11. One may argue that deceased Sadhna Devi was niece of P.Ws. Shardha Devi Kumari Devi and Birendra Giri and all eye witnesses are her close relatives and therefore interested evidence of the prosecution cannot be accepted. By taking note of the fact that all eye witnesses are near and dear ones of the deceased this Court feels it appropriate to note the law laid down by the Hon’ble Apex Patna High Court CR. APPNo.1996 dt.11 03 2022 Court in the matter of appreciation of evidence of relatives as well as interested witnesses. The incident took place in a portion of the field adjacent to the house of the prosecuting party which was used by the women of the house for the purpose of easing themselves. According to the prosecution case all woman from Giri family including deceased Sadhna went for easing at about 07.30 P.M. of 15.06.1992 in that field which was adjacent to their house and temple. At that place according to the prosecution case accused Radhey Shyam Singh fired a bullet at Sadhna on instigation of other accused persons. If these facts are kept in mind then all related witnesses examined by the prosecution in the instant case become natural witnesses to the subject crime. If evidence of such eye witnesses is found to be clear cogent and trustworthy then the conviction can be based by relying their evidence. In Dalip Singh v. State of Punjab AIR 1953 SC 364 it is held thus in paragraph 26 by the Supreme “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty but foundation must be laid for such a criticism and the Patna High Court CR. APPNo.1996 dt.11 03 2022 mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 12. Prosecution witnesses P.W.1 Shardha Devi P.W.2 Kausalia Devi P.W.3 Lilavati Devi P.W.4 Kumari Devi and P.W.8 Chandravati Devi who are closely related to each other and were residing in the same house at village Pithan Purwa have deposed in unison that along with Sadhna Devi they all together had gone for easing at about 07.30 P.M. of the day of the incident in the adjacent field where the brick kiln was situated. The defence has brought on record from the cross examination of P.W.3 Lilavati Devi that there was no crop in the field in which they had gone for relieving themselves. This makes it clear that there was no obstruction to the view in the said field where the incident took place 13. On this backdrop we deem it convenient to consider evidence of P.W.4 Kumari Devi an aunt of the deceased Sadhna Devi so far as the actual incident is concerned. As per her version when they all were sitting for easing from the eastern direction accused persons came and they all were holding guns. P.W.4 Kumari Devi candidly stated that she identified all of them and after accused Patna High Court CR. APPNo.1996 dt.11 03 2022 Radhey Shyam Singh fired a bullet Sadhna Devi fell down after trading some distance. P.W.4 Kumari Devi states that then they all shouted and that is how P.W.7 Birendra Giri and others came on the spot. Cross examination of this witness shows that since childhood she was knowing all accused persons and to test the veracity of her version the defence has made a deep probe which unfortunately for the defence has caused surfacing such material on record which makes testimony of this witness as that of sterling quality. As per her version in the cross examination she was at her parental house because of marriage of deceased Sadhna Devi and she was knowing the villagers of her neighboring village since childhood. P.W.4 Kumari Devi has stated that in fact the place where they used to relieve themselves forms the land from Barahana village i.e. the village where the accused persons reside. P.W.4 Kumari Devi in her cross examination was asked to state the names of other persons from village Barahana. She stated names of several persons from village Barahana and has added that as they are villagers from the adjacent village Barahana she knows them also by their names From her cross examination reason for her knowledge about the accused persons is also brought on record. She stated that she is knowing them since childhood and as she used to see them from her childhood and she was also knowing their names. It is thus clear that P.W.4 Kumari Devi who was born and brought up at village Pithan Purwa was knowing the accused persons who were residents of Patna High Court CR. APPNo.1996 dt.11 03 2022 adjoining village Barahana which according to the versions of P.W.3 Lilavati Devi coming on record from cross examination is just 1 and 1 4 Bigha away from village Pithan Purwa. Evidence of P.W.4 Kumari Devi in respect of identification of the accused persons is very normal natural and trustworthy. She was also questioned in respect of the incident in her cross examination and from her cross examination it is brought on record that accused Radhey Shyam Singh had fired a bullet at Sadhna Devi from a distance of 4 cubits Her cross examination further reveals that Sadhna Devi was sitting on her eastern side for easing. This makes it clear that P.W.4 Kumari Devi was having all opportunity to see what was happening at the time of the incident in that open field and she witnessed the incident from a very close distance of about 4 cubits. Therefore it needs to be put on record that evidence of P.W.4 Kumari Devi which withstood the test of cross examination is trustworthy cogent and reliable. Identification of all accused persons is established from her evidence as those were the persons of previous acquaintance to her and she had seen them holding guns from a very close range at the time of the incident. She has stated that the incident took place after about 1 and 1 2 hours of the sunset but there is absolutely no cross examination of this witness or rather any witnesses in respect of non availability of source of light or inadequacy of the light at the time of the incident. I see no reasons to disbelieve version of P.W.4 Kumari Devi about the incident particularly when she had an occasion to see Patna High Court CR. APPNo.1996 dt.11 03 2022 accused persons since childhood and as she had seen the incident from a very close proximity 14. P.W.1 Shardha Devi is sister of P.W.4 Kumari Devi So far as the incident is concerned this witness has stated that she along with other prosecution witnesses and deceased Sadhna were sitting in the field for relieving themselves at about 07.30 P.M. of the date of the incident. Accused Harihar Rameshwar and Radhey Shyam came from the eastern side with guns in their hands. Upon seeing them as per version of P.W.1 Shardha Devi they all stood up because of feeling of embarrassment or shame. Then accused Harihar Singh exhorted to kill and immediately without wasting anytime accused Radhey Shyam Singh fired a bullet at Sadhna Devi Sadhna Devi fell down. Then they made hue and cry and P.W.7 Birendra Giri and others came. Cross examination of this witness makes it clear that the marriage of Sadhna Devi was performed on 05.05.1992 and incident in question took place on 15.06.1992. From cross examination of this witness it is seen that P.W.7 Birendra Giri is priest of the family temple which is just adjacent to their house itself. P.W.1 Shardha Devi in her cross examination made it clear that the place for easing where the incident took place is near that temple in her house. In respect of the incident there is searching cross examination of P.W.1 Shardha Devi. It is surfacing from her cross examination that she as well as other prosecution witnesses were sitting very near to each other for relieving themselves. She Patna High Court CR. APPNo.1996 dt.11 03 2022 herself had seen the accused persons from a distance of about 1 Bigha. It is elicited from her through her cross examination that upon hearing command of accused Harihar Radheshyam fired a bullet at Sadhna Devi without wasting any time. Thus cross examination of P.W.1 Shardha Devi is cementing her version about the incident. She had duly identified accused persons and her evidence regarding identification is not shattered in her cross examination. We see no reason as to why P.W.1 Shardha Devi should be disbelieved when her cross examination itself shows that she had witnessed the incident of firing from a close corner 15. Lilavati Devi is aunt of the deceased Sadhna Devi As per her version she and other prosecution witnesses as well as deceased Sadhna were sitting in the filed to answer the nature’s call She stated that Sadhna Devi told her that some persons are coming from the eastern side and therefore they all stood up. She stated that she saw accused Harihar Radhey Shyam and Rameshwar came holding guns in their hands. Then accused Rameshwar and Harihar gave command and accused Radhey Shyam fired a bullet at Sadhna Devi. Sadhna Devi then fell down and upon hearing their shouts P.W.7 Birendra Singh and others came. From her cross examination it is brought on record deceased Sadhna Devi was sitting just 2 and 1 2 cubits away from her and accused persons came from eastern direction. When she was probed about the incident in cross examination P.W.3 Lilavati Devi has stated that all accused persons Patna High Court CR. APPNo.1996 dt.11 03 2022 are from Barahana village which is just at a distance of 1 and 1 4 Bigha from her village. There is nothing in her cross examination to infer that this witness was not knowing accused persons or that she was not in a position to identify them. She had made it clear in her cross examination that the place where they were relieving themselves was not having any crop thereby giving a clear view enabling all of them to see what was happening. Thus this witness has also seen the incident from the close proximity with clear view and as such her version about the incident cannot be doubted 16. It takes us to the testimony of P.W.8 Chandravati Devi another aunt of Sadhna Devi. Her evidence is congruous to the evidence of other eye witnesses. She has also stated that when she along with other prosecution witnesses and deceased Sadhna were sitting to answer the nature’s call all accused persons to whom she was knowing well came from the eastern side holding guns Thereafter at the instigation of accused Harihar and Rameshwar accused Radhey Shyam fired a bullet at Sadhna. That bullet hit at the abdomen of Sadhna. She fell down and after hearing the shouts P.W.7 Birendra Giri and others came on the spot of the incident. In cross examination P.W.8 Chandravati Devi has stated that she as well as other prosecution witnesses and Sadhna Devi were sitting closely in the area having 10 cubits circumference and that was the regular place used by them for relieving themselves. This material makes it clear that P.W.8 Chandravati Devi had also seen the incident Patna High Court CR. APPNo.1996 dt.11 03 2022 from the close proximity 17. P.W.2 Kausalia Giri has a weak eye sight and she admitted in the cross examination that in the evening she can see less than the normal. However her evidence shows that she was present on the scene of the occurrence with other prosecution witnesses and they were relieving themselves in a field where the brick kiln was located. Her evidence makes it clear that they all were sitting in an area with circumference of 10 to 12 cubits. Because of weak eye sight of P.W.2 Kausalia Giri we can ignore her evidence so far as the actual incident is concerned though she has stated that at the instigation of accused Harihar accused Radhey Shyam fired a bullet at Sadhna Devi 18. If we see evidence of these eye witnesses then it is clear that a gunshot was fired at the deceased from a very close range. Evidence of these witnesses is gaining corroboration from the evidence of P.W.13 Dr. Sanjay Das who had examined Sadhna Devi in an injured condition soon after the incident. This Medical Officer has stated that Sadhna Devi was having multiple small charred wounds on her hands palms as well as abdomen. Thus finding of charred on front side of the body of deceased Sadhna makes it clear that she was shot from a close range and this evidence fully corroborates the version of eye witnesses which we have discussed in 19. Now the question which falls for consideration is Patna High Court CR. APPNo.1996 dt.11 03 2022 whether there was sufficient light on the scene of the occurrence in order to enable the eye witnesses to fix the identity of the accused persons as the perpetrators of the subject crime. The incident according to their version took place at about 07.30 P.M. From cross examination of P.W.4 Kumari Devi it is brought on record that the incident took place after 1 and 1 2 hours of the sunset whereas from cross examination of P.W.3 Lilavati Devi it is brought on record that the incident took place after one hour from the sunset There is not a single question to any of the eye witnesses regarding inadequacy of light at the scene of the occurrence thereby preventing them from identifying the accused persons. Rather from cross examination of P.W.3 Lilavati Devi and P.W.4 Kumari Devi it is brought on record that Pithan Purwa and Barahana where the accused persons and prosecuting party reside are twin villages which are located in the close proximity thereby enabling the villagers from both the villages to know each other. Evidence of P.W.4 Kumari Devi makes it clear that the accused persons were known to them since prior to the incident. The defence had cross examined the prosecution witnesses and particularly P.W.5 Rajendra Giri to bring on record the fact that there was love affair between Radhey Shyam and deceased Sadhna and the couple eloped and she was subsequently brought back and thereafter Sadhna was married to some another person of the village. This line of evidence makes it clear that there was an ample opportunity to the eye witnesses who Patna High Court CR. APPNo.1996 dt.11 03 2022 are related to the deceased to know the accused persons apart from substantive evidence of P.W.4 Kumari Devi as well as P.W.3 Lilavati Devi regarding proximity of both the villages and frequenting of 20. Section 57 of the Evidence Act deals with facts of which the Court must takes judicial notice. This Section of the Evidence Act is not exhaustive . The Court can take judicial notice of public history as well as science 21. The incident is proved to have taken place on 15.06.1992. It was on that day P.W.13 Dr. Sanjay Das had examined Sadhna Devi in an injured condition at about 10.00 P.M. She was having a bleeding wound at her abdomen. Going by the history the night of 15.06.1992 was a full moon night and the time of sunset at Buxar district of Bihar was 06.46 P.M. Being a full moon night it needs to be held that in absence of any contra evidence that there was sufficient light in that open field enabling all the prosecution eye witnesses mentioned in the foregoing paragraphs an opportunity to identify the accused persons. It is a matter of common knowledge that person of previous acquaintance can be identified even by his gait and postures. As there are no suggestions to the contrary we are of the opinion that eye witnesses examined by the prosecution were having opportunity to witness the assailants in the moon light as the assailants were at very close to them at the time of the incident Therefore ruling in the matter of Ashoksinh Jayendrasinh No.1996 dt.11 03 2022 has no application to the facts of the prosecution case. In that matter the incident had taken place at about 09.00 P.M. in the agricultural field and Panchnama of scene of occurrence was not showing any indication of electric light or electric bulb in the vicinity. On that backdrop it was observed therein that evidence regarding identification of the accused becomes doubtful 22. P.W.7 Birendra Giri reached on the spot of the incident on hearing the shouts as well as the sound of gunshot Thereafter P.W.9 Ramdayal Kamkar co villager had reached the spot of the incident. Both these witnesses have stated that Sadhna Devi was lying on the spot of the incident with bleeding injury. As per version of these two witnesses Sadhna Devi told them about the incident of firing bullet by accused Radhey Shyam Singh who was accompanied by other accused persons. Considering the fact that Sadhna Devi had suffered a bullet wound at vital part of her body we may not place explicit reliance on this oral dying declaration but at the same time we have noted that evidence of eye witnesses are trustworthy and inspiring confidence. We see no merit in the argument advanced by the learned Advocate that as eye witness have not confirmed the disclosure of the incident to P.W.7 Birendra Giri evidence of first informant P.W.7 Birendra Giri is not reliable. On the contrary evidence of eye witnesses who happen to be near relatives of P.W.7 makes it clear that they were making hue and cry when P.W.7 Birendra Giri reached at the spot of the incident Patna High Court CR. APPNo.1996 dt.11 03 2022 Naturally that hue and cry must be in respect of the incident of firing a bullet at deceased Sadhna. As such there is no omission in that regard and as such ruling in the matter of Bachesh Kumar Singh is of no application to the facts in the instant case 23. In the result we see no merit in the instant appeals The appeals are accordingly dismissed 24. We record our appreciation for strenuous efforts taken by Ms. Surya Nilambari the learned Advocate appointed to represent the appellants at the cost of the State in assisting us for arriving at the correct conclusion in the matter. We quantify the fees payable to her at Rs.5000 and direct the High Court Legal Services Authority to pay the said amount to Ms. Surya Nilambari the learned ( Sunil Kumar Panwar J

Security under Article 21 of our Constitution will encompass the freedom to avoid a forced return of persons to a country where they would face persecution or death: Manipur High Court

Article 21 of our constitution on security would provide the freedom from oppression and protection from the risk of death for refusing to return to a place where they face the danger of being killed, provided that the presence of asylum seekers is not prejudicial to the country’s security. The judgment was passed by The High Court of Manipur in the matter of Nandita Haksar v. State of Manipur and Ors.[ MC[W.P.(Crl.)] NO.1 OF 2021] by Division Bench consisting of Hon’ble Mr Sanjay Kumar & Mr Lanusungkum Jamir. The facts of the case are 7 Myanmarese national fled to India, after a deadly military coup in their country. The military banned the Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. They fled their country fearing persecution and physical danger after the coup and the violence that broke out thereafter. They entered India and took shelter at Moreh in Tengnoupal district, Manipur. They sought the help of the petitioner as they feared that they would be sent back to Myanmar by the Assam Rifles, an Indian armed force, as they had come without proper travel documents. The Learned petitioner argued that Article 14 thereof declares that everyone has a right to seek and to enjoy in other countries asylum from persecution. India is also party to the International Covenant on Civil and Political Rights, 1966. This Covenant was entered into in recognition of the fact that certain inalienable rights of all members of the human family are the foundation of freedom, justice and peace in the world; and that these rights derive from the inherent dignity of the human person. Though India’s policy on ‘refugees’ remains rather opaque, if not obscure, and asylum seekers are straightaway branded as ‘foreigners’, if not worse, certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens. In the case of National Human Rights Commission vs. State of Arunachal Pradesh & Anr. The SC observed that “We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to the procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise” Learned counsel for Respondent contended that these seven people, who admittedly entered the country unlawfully, should suffer the repercussions of their illegal actions first, and that this Court cannot give them immunity despite flagrant breaches of domestic laws. He will also argue that the constitutional freedoms granted under Article 19 are exclusive to residents and that these seven individuals are not entitled to those freedoms under Articles 19(1)(d) and 19(1)(e) in terms of travelling freely or residing/settling in any part of India’s territory.

IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(Crl.) NO. 6 OF 2021 MC[W.P.(Crl.)] NO.1 OF 2021 MC[W.P.(Crl.)] NO.2 OF 2021 WITH AND ..... Petitioner Nandita Haksar aged about 68 wife of Sebastian Hongray resident of 203 Gera Astoria Caranzalem Panaji Goa 403002 at present in Imphal 795001. Versus 1. State of Manipur represented by the Chief Secretary Government of Manipur Bapura Imphal 795001. 2. Deputy Commissioner Tengnoupal District 795131. 3. The Union of India through the Ministry of Home Affairs North Block Central Secretariat New Delhi110001. 4. The Union of India through the Ministry of Defence South Block New Delhi 110011. 5. The Union of India through the Ministry of External Affairs Room No.2021 ‘A’ Wing Jawaharlal Nehru Bhawan 23 D Janpath New Delhi 110011. Respondents Petitioner Party in person For Respondent Nos.1 & 2 For Respondent Nos.3 4 & 5 Date of reserving of Judgment Date of delivery of Judgment Ms. Nandita Haksar Mr. R.K.Umakanta GA Mr. S.Suresh ASG WP(Crl.)No. 21 Page 1 BEFORE HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR AND HON’BLE MR. JUSTICE LANUSUNGKUM JAMIR Judgmentas a party in person. Her prayer in this writ petition is to allow the seven named Myanmarese citizens who entered India illegally to travel to New Delhi to seek protection from the United Nations High Commissioner for RefugeesMaster Nang Khan Hauand Ms. Dim Sian Huai NuamBy order dated 17.04.2021 this Court suo motu impleaded the Ministries of Home Affairs Defence and External Affairs of the Union of India represented by the respective Secretaries and adjourned the case to enable the State and the Central Governments to put forth their stands. On 20.04.2021 an adjournment was sought by the learned counsel for the State and Central Governments as they were unable to complete instructions. However taking note of the petitioner’s prayer for interim relief this Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal. This order was passed in view of the threat of apprehension and deportation faced by them at that location. Pursuant to the above order they were brought to Imphal and are presently stationed at the local residence of the petitioner. Further as permitted by this Court their details and particulars were checked by the Senior Immigration Officer at Moreh before they were brought here. WP(Crl.)No. 21 Page 3 No affidavits in opposition were filed by either the State or the Central Governments. Notwithstanding the same arguments on merits were advanced by Ms. Nandita Haksar the petitioner party in person Mr. R.K.Umakanta learned Government Advocate for the State of Manipur and Mr. S.Suresh learned ASG appearing for the Union of India. The case is therefore amenable to final disposal. The two miscellaneous applications filed by the petitioner party in person seeking to place on record certain additional documents are allowed and the documents are taken on record subject to just exceptions. 6] At the outset the admitted position is that these seven Myanmarese citizens illegally entered India. They did not have the requisite travel documents. However the question is whether they can be categorized as ‘migrants’. The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another especially in order to find work or better living conditions. The word ‘refugee’ on the other hand refers to a person who is forced to leave his her country in order to escape war persecution or natural disaster. The category to which these seven Myanmarese persons belong is perhaps clearly demonstrable from the conditions that compelled them to flee Myanmar and illegally enter India! India is not a signatory to the Geneva Refugee Convention 1951 and the New York Protocol of 1967. It is however a party to the Universal Declaration of Human Rights 1948. Article 14 thereof declares that everyone has a right to seek and to enjoy in other countries asylum from persecution. India is also party to the International Covenant on Civil and Political Rights 1966. This Covenant was entered into in recognition of the fact that certain inalienable rights of all members of WP(Crl.)No. 21 Page 4 the human family are the foundation of freedom justice and peace in the world and that these rights derive from the inherent dignity of the human person. Notably India was one amongst the 193 member countries of the UN General Assembly that endorsed the ‘Global Compact on Refugees’ as recently as on 17.12.2018. This formulates a for more predictable and equitable responsibility sharing and provides a blueprint for Governments International Organizations and other stakeholders to ensure that host communities get the support they need so that refugees can lead productive lives. Its key objectives are: to ease the pressure on host countries enhance refugee self reliance expand access to third country solutions and support conditions in the countries of origin for return in safety and dignity. In this milieu it would be relevant to note that Article 51 of our Constitution casts a non enforceable duty upon the ‘State’ to promote international peace and security apart from fostering respect for international law and treaty obligations in the dealings of organized peoples with one another. Though India’s policy on ‘refugees’ remains rather opaque if not obscure and asylum seekers are straightaway branded as ‘foreigners’ if not worse certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens. As long back as in the year 1996 in National Human Rights Commission vs. State of Arunachal Pradesh & another1 SCC 742] the Supreme Court observed thus: ‘We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also no person can be deprived of his life or personal liberty except according to the procedure established by law. Thus the State is bound to protect the life and liberty of every human being be he a citizen or WP(Crl.)No. 21 Page 5 In effect even a ‘foreigner’ is entitled to protection of life and personal liberty under Article 21 of our Constitution3 SCC 554] and State of Arunachal Pradesh vs. Khudiram ChakmaSCC 615]. It is in the context of Article 21 that the principle of ‘non refoulement’ assumes great significance. ‘Non refoulement’ is a principle of international law that provides a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or a territory where he or she faces a threat to life or freedom because of race religion nationality membership in a social group or political opinion and 19 with regard to moving freely or residing settling in any part of the territory of India. He would place reliance on the observations of the Supreme Court to this effect in Chairman Railway Board and others Vs. Chandrima Das and others 2000) 2 SCC 465]. On the same lines Mr. R.K.Umakanta learned Government Advocate would argue that domestic laws must prevail in the first instance as such illegal entry from a neighbouring country if condoned by this Court would set an unhealthy precedent and open the floodgates. He would further contend that the letter dated 29.03.2021 issued by the Government of Manipur is not reflective of any WP(Crl.)No. 21 Page 7 policy decision and was only intended for the benefit of certain identified Myanmarese nationals who were injured and required medical care and attention. 12] The aforestated arguments of the learned counsel for the State and the Central Governments proceed on a rather narrow and parochial consideration of the larger issues that arise in this case. The seven Myanmarese individuals in question are not ‘migrants’ as normally understood but are ‘asylum seekers’. They did not enter our country with the clear cut and deliberate intention of breaking and violating our domestic laws. They fled the country of their origin under imminent threat to their lives and liberty. They aspire for relief under International Conventions that were put in place to offer protection and rehabilitation to refugees asylum seekers. In such a situation insisting that they first answer for admitted violations of our domestic laws as a condition precedent for seeking ‘refugee’ status would be palpably inhuman. That apart they are only seeking safe passage to approach the UNHCR at New Delhi for protection and are not asserting any rights or freedoms under Article 19 of the Constitution. Their claim would be traceable to Article 21 and not to Article 19 of the Constitution. As already detailed at length hereinabove their claim for such Constitutional protection cannot be denied. Even in Chairman Railway Board and others vs. Chandrima Das and others the Supreme Court ultimately held that the Bangladeshi citizen who had come to India illegally was entitled to be treated with dignity and to the protection of her person as guaranteed under Article 21 of the Constitution. The Supreme Court further observed that as a national of another country she could not be subjected to treatment which was below dignity nor could she be subjected to physical violence WP(Crl.)No. 21 Page 8 or outrage of her modesty. Her right under Article 21 was therefore held to be violated and the ‘State’ was found liable to pay her compensation. Further though an argument was advanced about the possible threat that these Myanmarese persons may pose to the security of our country no material is produced in support of the same. On the other hand the documents placed on record reflect that Mr. Pau Khan Thawn and his wife Ms. Niang Go Man were both certified as ‘refugees’ by the UNHCR earlier and they remained in India along with their sons Master Nang Sian Mung and Master Nang Khan Hau who also had such UNHCR certification. They returned to Myanmar after peace was restored there. Similarly Mr. Si Thu Aung was sanctioned a ‘Visa Gratis’ by the Indian Government as recently as in January 2020 which clearly indicates that he was not perceived to be a threat to our country. The contentions to the contrary are therefore purely speculative born of a fertile imagination. 15] The argument that the State of Manipur did not manifest a policy decision in its letter dated 29.03.2021 addressed to the Deputy Commissioners of the five districts bordering Myanmar does not merit consideration. If it had not been reflective of a policy decision it would not have been addressed to the authorities of all the bordering districts. Further the letter itself does not indicate that it was intended for the benefit of particular individuals. On the other hand the ‘Subject’ portion of the letter reads: ‘Illegal entry of Myanmarese Nationals’. It was therefore an expression of the State’s policy on the subject issue at that point of time. At this stage it may be noted that cases of this nature are neither new nor of recent origin. In 1989 Ms. Zothansangpuii a Burmese refugee who illegally WP(Crl.)No. 21 Page 9 entered this country and suffered conviction and imprisonment under our domestic laws approached the Imphal Bench of the Gauhati High Court vide Civil Rule No. 9889 seeking safe passage to Delhi to seek political asylum. By order dated 20.09.1989 a Division Bench permitted her to go to Delhi to seek protection. It is stated that she was then settled in Australia by the UNHCR. In the same year the Gauhati High Court again had occasion to deal with a similar claim in Civil Rule No.1847 of 1989 filed by one Mr.Bogyi an under trial Burmese detenu. He approached the Court fearing deportation to Burma and praying for an opportunity to obtain political asylum. By order dated 17.11.1989 a Division Bench of the Gauhati High Court directed his release upon furnishing security to enable him to go to Delhi to seek protection. It appears that he was thereafter shifted by the UNHCR to Norway. Yet again the Gauhati High Court dealt with a like issue in Civil Rule No. 515 of 1990 filed by Khy Htoon and others refugees of Burmese origin. This case was disposed of on 11.09.1990 permitting their release on interim bail to enable them to go to Delhi for the purpose of obtaining refugee status. It is stated that they were then settled in other countries by the UNHCR. The Imphal Bench of the Gauhati High Court again dealt with this issue in Civil Rule No.516 of 1991. This case was filed by one U. Myat Kyaw and one Nayzin Burmese refugees seeking protection. By order dated 26.11.1991 a Division Bench directed their release on interim bail to enable them to go to Delhi for that purpose. This Court is informed that these persons were also settled abroad by the UNHCR. Be it noted that in none of these cases these individuals had to face the full consequences of their illegal acts before seeking ‘refugee’ status. WP(Crl.)No. 21 Page 10 On similar lines in Dr.Malavika Karlekar vs. Union of India and another 583 of 1992 dated 25.09.1992] the Supreme Court directed twenty one Burmese persons who were likely to be deported from Andaman Islands to Burma not to be deported till the question of their status was determined as their applications for refugee status were pending and as they posed no danger or threat to the security of our country. 17] It may also be noted that though India has no clear refugee protection policy or framework it does grant asylum to a large number of refugees from nearby countries. India usually respects the UNHCR’s recognition of the status of such asylum seekers mainly from Afghanistan and Myanmar. Refugee Status Determinationis undertaken by the UNHCR in India for conferring such status and for consequential documentation. However the UNHCR has its office only at New Delhi and not at the Indian borders. It is only after the UNHCR completes the processes and accords ‘refugee’ status that the role of India’s Foreigners Regional Registration Offices may come into play. While so in response to the petitioner party in person’s e mail on the subject the UNHCR at New Delhi sent an e mail stating that the new arrivals from Myanmar who wished to approach it for registration may do so once they are in Delhi and provided phone mobile numbers. Therefore it would be essential for these seven Myanmarese persons to first approach the UNHCR at New Delhi and only thereafter the Union of India would be in a position to take a call as to whether they can be granted refugee status and asylum in India as was done earlier. In the alternative the UNHCR would be at liberty to rehabilitate these people in host countries under the 1951 Refugee WP(Crl.)No. 21 Page 11 Convention. In either event these persons cannot be made to face persecution if not a threat to their very lives and liberty by being deported to their home country. 18] Reliance placed by Mr. R.K.Umakanta learned Government Advocate on the recent order dated 08.04.2021 of the Supreme Court in Mohammad Salimullah and another vs. Union of India and othersNo. 7917] is of no avail. The said order was an interlocutory order and no ratio was laid down therein constituting a binding precedent under Article 141 of the Constitution. Further denial of interim relief in that case turned upon a perceived threat to the internal security of our country and the possibility of illegal ‘immigrants’ being provided safe passage due to the porosity of our borders. Neither of those aspects arises in this case. On the above analysis this Court finds it just and proper to extend protection under Article 21 of the Constitution to these seven Myanmarese persons and grant them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. Some of them seem to be in possession of their passports but in any event their details and particulars have been noted by the Immigration authorities of our country. There shall accordingly be a direction to the FRRO at Imphal airport to immediately provide them with temporary identification cards to enable them to travel to New Delhi by air if such identity proofs are necessary. The State and Central Governments shall facilitate their travel to New Delhi and shall not cause any obstruction. The petitioner party in person states that she will make the required arrangements for purchase of their air tickets and would also arrange for their stay at New Delhi pending consideration of their claims for WP(Crl.)No. 21 Page 12 ‘refugee’ status by the UNHCR. This assurance is taken on record. Further the petitioner party in person shall ensure that these seven persons approach the Officer in Charge of the Parliament Street Police Station or the jurisdictional Police Station at New Delhi to register their names local addresses and whereabouts pending consideration of their claims. 20] The writ petition is accordingly allowed with the above directions. MC[W.P.(Crl.)] No. 21 and MC[W.P.(Crl.)] No. 21 are also allowed. In the circumstances there shall be no order as to costs. CHIEF JUSTICE Opendro WP(Crl.)No. 21 Page 13

Retired employees can file petition at the place of receiving pension: Supreme Court

The Supreme Court held that the Patna High Court and Jharkhand High Court had erred in dismissing a writ petition on the basis of lack of territorial jurisdiction. The late petitioner’s wife appealed to the SC aggrieved with the decisions of the HC as they contended that both petitions had different causes of action. The earlier Writ Petition, in the present matter of  Shanti Devi Alias Shanti Mishra V Union Of India & Ors. [Civil Appeal NO. 3630 of 2020], was filed on different cause of action where the substantial prayer was for refund of the amount illegally deducted whereas the second one was on entirely different cause of action. The appellant’s husband, a retired employee of the Coal India Ltd. had to run from pillar to post after two high courts rejected his petition with respect to his pension on the basis of lack of territorial jurisdiction. The case went on for long enough so much so that he died during the pendency of the suit and his wife was substituted as writ petitioner.  The petitioner filed a writ petition in the High Court of Patna as well as the High Court of Jharkhand and both the courts dismissed his petition on the ground of lack of territorial jurisdiction as the petitioner was employed at West Bengal but resided in Jharkhand after retirement, where he was receiving pension. The Learned Single Judge of the Patna High Court held that “petitioner served in the State of West Bengal under the authorities and organizations which are located either in States of West Bengal or Jharkhand, hence, High Court of Patna had no territorial jurisdiction”. The SC held that, “Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 8 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhabga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 8 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.36320 arising out of SLP(C)No.183718 SHANTI DEVI ALIAS SHANTI MISHRA ...APPELLANT(S UNION OF INDIA & ORS. ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J Leave granted. This appeal has been filed questioning the Division Bench judgment of Patna High Court in Letters Patent Appeal No.12617 dismissing the Letters Patent Appeal of the appellant. Letters Patent Appeal was filed against the judgment of learned Single Judge dated 04.08.2017 by which Writ Petition No.59914 filed by her late husband in which she was substituted after death of her husband was dismissed by learned Single Judge on the ground of lack of territorial jurisdiction Brief facts of the case for deciding this appeal 3.1 The husband of the appellant Shri Bashishtha Narayan Mishra was employed in Coal India Limited. He was working at Moira Colliery Bankola Area District Burdwan West Bengal Ministry of Coal Government of India in exercise of power under Section 3E of Coal Mines Provident Fund and Miscellaneous Provisions Act 1948 and in supersession of the Coal Mines Family Pension Scheme 1971 notified a Family Coal Mines Pension Scheme 1998 dated 05.03.1998. Late husband of the appellant did not opt for the pension Scheme notified under Notification dated 05.03.1998 3.2 By Notification dated 09.01.2002 Coal Mines Pension Scheme 1998 was amended by inserting paragraph 2A in the Scheme providing that an employee who had not opted for the Coal Mines Family Pension Scheme 1971 but is covered by the Provident Fund Scheme may opt for pension within a period of nine months After the Notification dated 09.01.2002 the same was circulated by Eastern Coal Fields Limited to all Regional Commissioners Assistant Commissioners. 3.3 The husband of the appellant in pursuance of the Notification dated 09.01.2002 submitted the option opting for Pension Scheme which option was forwarded to the Sr. Personnel Officers by Manager Moira Colliery by letter dated 18.11.2003 requesting for transfer of Rs.1 38 164 from provident fund account of B.N. Mishra to his pension fund. By further letter dated 20.11.2003 of Regional Commissioner it was informed that amount of Rs.48 467 has been adjusted under para 4(2 of Scheme 1998. Late B.N. Mishra was to retire on 30.04.2005. His papers for settlement of pension were forwarded to The Regional Commissioner1 Coal Mines Provident Fund Asansol. By letter dated 30.11.2005 written by Regional Commissioner Coal Mines Provident Fund Region 1 Asansol the late husband of the appellant was asked to deposit the amount of Rs.39 198 towards recovery of pension contribution. The pension was sanctioned to Shri Mishra after about 14 months from retirement thereafter he started receiving pension w.e.f. May 2005. 3.4 Late Shri B.N. Mishra being native of Village Bhuskol Police Station Darbhanga District Darbhanga he had claimed payment for pension from Darbhanga State of Bihar. Pension started in account of Late Shri B.N. Mishra with State Bank of India Darbhanga State of Bihar. A Writ Petition No. 139506 was filed by late Shri B.N. Mishra in Patna High court where he prayed for grant of refund of Rs.1 33 559 which was wrongly withheld illegally deducted from the writ petitioner The said writ petition was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction. Learned Single Judge held that petitioner served in the State of West Bengal under the authorities and organizations which are located either in States of West Bengal or Jharkhand hence High Court of Patna had no territorial jurisdiction. 3.5 After dismissal of the above Writ Petition No.13955 of 2006 on 08.02.2013 late Shri B.N. Mishra filed Writ Petition No. 49313 in Jharkhand High Court for the relief which he had claimed in the Writ Petition No.13955 of 2006 before Patna High Court When notice of the writ petition filed by late Shri B.N. Mishra in Jharkhand High Court was received by office of Regional Provident Fund Commissioner Asansol a letter dated 07.10.2013 was issued to the husband of the appellant at his place of residence i.e. Village Bhuskol Police Station Darbhanga District Darbhanga State of Bihar stating that Shri B.N. Mishra having not opted initially for pension scheme in pursuance of 1998 notification he could not have opted for pension in the year 2002. It was stated that Pension of Shri B.N. Mishra was erroneously settled by Regional Commissioner hence Rs.8 01 334 is to be recovered towards pension payment from May 2005 to September 2013 3.6 By further letter dated 06.11.2013 issued by Regional Commissioner Coal Mines Provident Fund Region 1 Asansol he was directed to refund amount of Rs.8 09 268 and entire pension contribution alongwith interest. He was communicated that it has been decided to stop payment of monthly pension w.e.f November 2013. After receipt of the letter dated 07.10.2013 Shri B.N. Mishra sent a reply on 07.11.2013 stating that letter dated 07.10.2013 has been issued due to personal bias arising due to punitive action taken by appropriate authorities against Regional Commissioner Region 1 Asansol on a petition filed by Shri B.N. Mishra under the Right to Information Act 2005. Petitioner sent representations to Secretary Ministry of Coal and Commission. 3.7 A Writ Petition No. 59914 was filed by late Shri B.N. Mishra in Patna High Court where he challenged the letter dated 07.10.2013 and 06.11.2013 and also sought direction for payment of pension to the petitioner with interest. The writ petition came for hearing before learned Single Judge on 04.08.2017. Learned Single Judge noticed the earlier order of the High Court dated 08.02.2013 by which his earlier Writ Petition No.139506 was dismissed on the ground of lack of territorial jurisdiction. Learned Single Judge observed that on similar facts the said writ petition having been dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction and writ petition having been filed by petitioner before the Jharkhand High Court which is pending the order of stoppage of pension is part of retirement benefit hence the writ petition is dismissed on the ground of lack of territorial jurisdiction. A LPA No.1265 of 2017 was filed against the judgment of learned Single Judge dated 04.08.2017 During the pendency of writ petition Shri B.N. Mishra died and his wife Shanti Devi was substituted as writ petitioner. LPA was filed before the Division Bench against the judgment of learned Single Judge which has been dismissed by the impugned judgment aggrieved by which order this appeal has been filed. We have heard Shri Arvind Kumar Gupta learned counsel for appellant Shri Sreekumar C.N. for the respondent Nos. 1 to 3 and Shri Kaustubh Shukla for respondent Nos. 5 and 8. Shri Uddyam Mukherjee appeared for respondent No.4. Learned counsel for the appellant submits that High Court committed error in dismissing the writ petition on the ground of lack of territorial jurisdiction. High Court of judicature at Patna had territorial jurisdiction to entertain the writ petition. The part of cause of action had arisen within the territorial jurisdiction of Patna High Court. Late Shri B.N. Mishra was receiving pension from State Bank of India Darbhanga w.e.f. May 2005 after his retirement on 30.04.2005. After issuance of order dated 07.10.2013 and 06.11.2013 directing for refund of amount of Rs.8.01.334 and 8 09 268 and stopping the pension w.e.f. November 2013 the cause of action arose at Darbhanga where late Shri B.N Mishra was residing and receiving pension. The earlier Writ Petition No.13955 of 2006 was filed on different cause of action where the substantial prayer was for refund of the amount illegally deducted whereas Writ Petition No.59914 was on entirely different cause of action. Late Shri B.N Mishra was receiving pension at Darbhanga which pension having been stopped from November 2013 the cause of action arose within the territorial jurisdiction of Patna High Court and learned Single Judge as well as the Division Bench erred in dismissing the writ petition relying on dismissal of earlier writ petition whereas cause of action of both the writ petitions were different and the Writ Petition No. 5999 of 2014 could not have been dismissed on the ground of lack of territorial Learned counsel for the respondent Nos.1 to 3 submits that the writ petition had rightly been dismissed on the ground of lack of territorial jurisdiction. He submits that late Shri B.N. Mishra after dismissal of the writ petition had filed writ petition in the Jharkhand High Court which writ petition was still pending when he filed Writ Petition No.59914 and the writ petition could not have been entertained by Patna High Court Learned counsel for the respondent Nos. 1 to 3 does not dispute that part of cause of action arose in territorial jurisdiction of Patna High Court however he submits that on the principle of forum conveniens the writ petition could not have been entertained at Patna and the writ petition ought to have been prosecuted in the Jharkhand High Court. Learned counsel for the respondent Nos. 5 and 8 Shri Kaustubh Shukla submits that late Shri B.N Mishra had served in Eastern Coal Fields Ltd. at West Bengal and had retired on 30.04.2005 from Burdwan West Bengal. It is submitted that Shri B.N. Mishra having accepted the jurisdiction of the Jharkhand High Court could not have filed writ petition at Patna High Court. The husband of the appellant had not opted for the Coal Mines Pension Scheme in 1998 but he opted for the Scheme second time in the year 2002 after subsequent notification dated 09.01.2002 The deductions made by Regional Provident Fund Commissioner was in accordance with Coal Mines Pension Scheme 1998. Earlier writ petition filed by petitioner being Writ Petition No.13955 of 2006 having bene dismissed by the Patna High Court on the ground of lack of territorial jurisdiction and no appeal having been filed by Shri B.N. Mishra the said judgment became final. Shri B.N. Mishra after dismissal of his earlier writ petition filed Writ Petition No.4930 of 2013 before the Jharkhand High Court at Ranchi which clearly proves that Shri B.N Mishra had accepted the jurisdiction of Jharkhand High Court and pursued his writ petition there. The mere fact that letters dated 07.10.2013 and 06.11.2013 were received at Darbhanga the Patna High Court shall have no territorial jurisdiction to entertain the writ petition. Learned counsel appearing for the respondent No.4 also adopted the above submissions. Learned counsel for the parties have also placed reliance on various judgments of this Court as well as judgment of Patna High Court which shall be noticed while considering the submissions in detail 10. From the submissions of the learned counsel for the parties and the materials on record the following questions have arisen in this appeal: Whether the writ petition filed by late Shri B.N. Mishra being Writ Petition No. 5999 of 2014 is similar to Writ Petition No. 139506 and the Patna High Court had territorial jurisdiction to entertain the writ petition Whether part of cause of action for filing the Writ Petition No. 59914 arose within the territorial jurisdiction of Patna High Court 11. Both the questions being interrelated are being taken together. We may first notice the relevant pleadings in Writ Petition No. 5999 of 2014 which are the material facts or integral facts for claiming relief in the writ petition. In paragraph 5 of the writ petition petitioner had pleaded that he retired on 30.04.2005 and thereafter settled at his native place in Darbhanga District State of Bihar where in his savings account with State Bank of India Darbhanga his monthly pension is being paid since May 2005. In paragraphs 20 and 22 petitioner has pleaded about the letter dated 07.10.2013 issued by Regional Provident Fund Commissioner Region 1 Asansol and the letter dated 06.11.2013. Paragraphs 5 20 and 22 are extracted below for ready “5. That the petitioner was subsequently promoted as Personnel Manager in Moira Colliery Eastern Coal Fields Ltd. Bankola Area P.O. Moira Dist. Burdwan from where he retired from service on 30 04 2005 and thereafter settled at his native village in Darbhanga Dist. Bihar where in his S B A C with State Bank of India Darbhanga his monthly pension is being paid since May 2005 Copy of notice of Super annuation vide letter no ECL C 5 Superannuation EE 1572 dated 23 24 11 2004 is annexed herewith and marked as Annexure 1 20. That upon receipt of a copy of writ petition from the learned Central Govt Counsel the Regional P.F. Commissioner Region 1 Asansol issued a notice vide No dated 7 10 2013 whereby he declared the payment of pension to the petitioner from May 2005 till date as wholly against the provisions of Para 15 of Coal Mines Pension Scheme 1998 which says that option once exercised shall be final and since the petitioner had firstly submitted a negative option so the subsequent submission of option in the affirmative is Further the against the Scheme. petitioner was also directed to refund the entire amount of pension amounting to Rs.8 01 334 with interest paid to him from May 2005 to October 2013 Furthermore the pensioner was also informed vide the aforesaid notice that payment of pension to him shall be stopped from November 2013 Copy of letter no CPF 32 Legal B.N. Mishra R 1 ASN 3481 dated 7 10 2013 along with relevant portion of Para 15 of CMPS 1998 is annexed herewith and marked as 22. That the Regional P.F. Commissioner did not wait for a reply from the petitioner to the notice issued by him and instead in a haste issued letter No CPF 32 1 Legal B.N. Mishra R 1 4056 dated 6 11 2013 whereby he stopped payment of pension to the petitioner from the month of Nov. 2013 and also directed him to refund the entire amount of pension paid to the petitioner from May 2005 to Oct 2013 amounting to Rs.8 09 268 Copy of letter no CPF 32 1 Legal B.N. Mishra R 1 4056 dated 6 11 2013 is annexed herewith and marked as 12. The copy of the letters dated 07.10.2013 and 06.11.2013 were also annexed with the writ petition which were addressed to late Shri B.N. Mishra at his address of Village Bhusakoul Police Station Darbhanga Sadar District Darbhanga State of Bihar Petitioner after receipt of the letter dated 07.10.2013 immediately represented on 07.11.2013 There is no dispute between the parties that the pension of late Shri B.N. Mishra was stopped from November 2013 and the Writ Petition No.59914 was filed after stoppage of pension which he was getting for the last 08 years. Further by letter dated 06.11.2013 petitioner was also directed to return the amount of Rs.8 09 268 which was amount of pension he received in his bank account in State Bank of India Darbhanga from May 2005. 13. We may first notice the order of learned Single Judge dismissing the writ petition on the ground of lack of territorial jurisdiction dated 04.08.2017 Paragraph 5 of the judgment gives reasons for dismissing the writ petition. In paragraph 5 mainly two reasons have been given by the learned Single Judge for dismissing the writ petition Earlier Writ Petition No.13955 of 2006 for grant of retiral benefits was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction. The petitioner did not move in LPA or before the Supreme Court and4 SCC 711 where in paragraphs 5 and 6 following has been laid down: “5. Clauseof Article 226 begins with a non obstante clause — notwithstanding anything in Article 32 — and provides that every High Court shall have power “throughout the territories in relation to which it exercises jurisdiction” to issue to any person or authority including in appropriate cases any Government “within those territories” directions orders or writs for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clauseof Article 226 the High Court may exercise its power conferred by clause if the cause of action wholly or in part had arisen within the territory over which it exercises jurisdiction notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition 6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove if traversed to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh16 Cal 98 102 : 15 IA 156] Lord Watson said “… the cause of action has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action or in other words to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” Therefore in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition the truth or otherwise whereof being immaterial. To put it differently the question of territorial jurisdiction must be decided on the facts pleaded in the petition Therefore the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5 7 18 22 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.” 22. This Court in Navinchandra N. Majithia Vs. State of Maharashtra and Ors. 7 SCC 640 had occasion to consider territorial jurisdiction of High Court under Article 226(2). Dealing with constitutional amendment made in Article 226(2) this Court laid down following in paragraph 37: “37. The object of the amendment by inserting clausein the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Subba Raoand to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “the cause of action wholly or in part arises” and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different 23. It was further held that the collocation of the words “cause of action wholly or in part arises” seems to have been lifted from Section 20 of the Code of Civil Procedure. This Court also quoted the definition of “cause of action” given by Lord Esher in Read Vs. Brown in paragraph 39. In paragraphs 38 39 and 41 following was laid down: “38. “Cause of action” is a phenomenon well understood in legal parlance Mohapatra J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words “cause of action wholly or in part arises” seems to have been lifted from Section 20 of the Code of Civil Procedure which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the “cause of action wholly or in part arises”. Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean “the bundle of facts which would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court” 39. In Read v. Brown22 QBD 128 58 LJQB 120 : 60 LT 250Lord Esher M.R. adopted the definition for the phrase “cause of action” that it meant “every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved” 41. Even in the context of Article 226(2 of the Constitution this Court adopted the same interpretation to the expression “cause of action wholly or in part arises” vide State of Rajasthan v. Swaika Properties3 SCC 217] . A three Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu4 SCC 711] observed that it is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi J.3 SCC 277 this Court explained the expression “cause of action” and has quoted with approval the cause of action as defined by Halsbury’s Laws of England in paragraph 16 and 17: “16. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit including not only the infraction of the right but the infraction coupled with the right itself Compendiously the expression means every fact which would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court. Every fact which is necessary to be proved as distinguished from every piece of evidence which is necessary to prove each fact comprises in “cause of 17. In Halsbury s Laws of Englandit has been stated as follows “‘Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint or the subject matter of grievance founding the action not merely the technical cause of 25. Another judgment which needs to be noticed is Kusum Ingots & Alloys Ltd. Vs. Union of India and Anr. 6 SCC 254 wherein this Court reiterated the meaning of cause of action in paragraph 6. This Court reiterated that even if a small fraction of cause of action accrues within the jurisdiction of the Court the Court will have jurisdiction in the matter. In paragraph 18 following was held: “18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.” 26. Another judgment which has been relied by learned counsel for the appellant is Nawal Kishore Sharma Vs Union of India and Ors. 9 SCC 329. In the above case the petitioner had filed a writ petition seeking various reliefs including disability compensation and pecuniary damages. The petitioner approached the Patna High Court for grant of various reliefs. Although he was declared unqualified by orders issued by the Shipping Department Government of India Mumbai. This Court held that Patna High Court has a jurisdiction to entertain the petition Following was laid down in paragraph 17: “17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital Consequently he was signed off for further medical treatment. Finally the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy and breathing problem which forced him to stay in his native place wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie therefore considering all the facts together a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from 27. Learned counsel for the appellant has also placed reliance on a Division Bench judgment of Patna High court in Saryu Singh Vs. The Union of India and Ors. 2015(2) PLJR 256. The above was a case where the petitioner had claimed the due pensionary benefits whose grievance was that payment made to him was less payment. In the above context the Division Bench in paragraphs 63 64 and 66 laid down following: “63. Recently pointed out the Supreme Court in Nawal Kishore Sharma v. Union of India reported in9 SCC 329 that the question whether or not cause of action wholly or in part has arisen within the territorial limit of any High Court shall have to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court s jurisdiction 64. In the backdrop of the position of law as discussed above it needs to be noted that the writ petitioner was admittedly an employee of Coal India Limited and as per the terms and conditions of his employment the writ petitioner as an employee is admittedly required to be paid his pension and pensionery benefits by his employer at Patna 66. If therefore the writ petitioner is not paid the sum of money which is due and payable to him as pension and pensionery benefits at Patna it becomes obvious that his right to receive due and payable pension and pensionery benefits at Patna is being denied consequently the infringement of his right or his sufferance of injury is at Patna.” 28. The above judgment of the same High Court was relevant in the facts of the present case which judgment although was delivered prior in time but was not noticed by the learned Single Judge as well as the Division Bench. 29. Form the facts of the present case we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place he being deprived of the benefit of pension which he was receiving from his employer The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India Darbhabga State of Bihar which was his native place fromwhere he was drawing his pension regularly for the last 08 years stoppage of pension gave a cause of action which arose at the place where the petitioner was continuously receiving the pension We thus are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner. 30. Another submission which has been advanced by learned counsel for the respondent Nos. 1 to 3 is that the writ petition was rightly dismissed on the principle of forum non conveniens. Forum non conveniens has been defined by P. Ramanatha Aiyar Advanced Law Lexicon 3rd Edition in following words: “The principle that a case should be heard in a Court of the place where parties witnesses and evidence are primarily 31. Black’s Law Dictionary defines forum conveniens in following words: “The court in which an action is most appropriately brought considering the best interests and convenience of the parties and witnesses.” 32. This Court in Kusum Ingots & Alloys Ltd.Madanlal Jalan v. Madanlal Bharat Coking Coal Ltd. v. Jharia Talkies & Cold StorageLtd.S.S. Jain Co. v. Union of India1 CHN 445 and New Horizons Ltd. v. Union of India AIR 1994 Del 126].” 33. As noted above the learned single Judge has also observed that petitioner ought to have filed the writ petition in Jharkhand High Court where his earlier writ petition was pending. The earlier writ petition which was initially filed in 2006 in Patna High Court was for refund of the amount as noted above. After dismissal of the writ petition by Patna High Court on the ground of lack of territorial jurisdiction Shri B.N. Mishra had filed a Writ Petition No.49313 in Jharkhand High Court for the relief which was claimed in Writ Petition No.139506. As noted above the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner who was staying at his native place Darbhanga. A retired employee who is receiving pension cannot be asked to go to another court to file the writ petition when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance. 34. In result we allow the appeal set aside the judgment of the Patna High Court and hold that Writ Petition No. 5999 of 2014 was fully maintainable at Patna High Court and learned Single Judge and Division Bench committed error in dismissing the writ petition on the ground of lack of territorial jurisdiction. The writ petition stands revived before the Patna High Court. 35. We are also of the view that appellant is entitled for an interim order in the writ petition for her sustenance. The appellant’s husband who had filed the writ petition had died during the pendency of the writ petition. After his death the appellant the widow was substituted. Six years have passed after filing of the writ petition wherein stoppage of pension was questioned. Appellant being the widow is also entitled for pensionary benefit for her sustenance since her husband was receiving pension. We are of the view that during the pendency of the writ petition the appellant is entitled to be paid provisional pension which shall be subject to final decision in the writ petition. We therefore direct respondent Nos.4 to 8 to ensure that provisional pension to the appellant is paid from the month of December 2020 which shall be subject to final orders passed in the writ petition. The appeal is allowed accordingly ( ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi November 05 2020

A government servant who is hospitalised while on leave outside the state will still be entitled to reimbursement: High Court of Jammu & Kashmir

When a government servant falls ill and needs to be hospitalised while visiting another state on leave, will still be entitled to reimbursement of hospital fees from his employer. This cannot be denied to him on the basis on minor technicalities. This was held in the judgement passed by a two member bench of the High Court of Jammu and Kashmir consisting of Justice Sanjay Dhar and Justice Pankaj Mithal in the case of Mohammad Gulzar Mir v Union Territory of Jammu & Kashmir [LPA No. 307/2019] pronounced on 12th August 2021. The petitioner, Mohammad Gulzar Mir was working as a block manager with the State Forest Corporation in Jammu and Kashmir. He took 10 days of leave from 21st February 2011 till 2nd March 2011 so that he can accompany his son to Delhi and help him secure admission in Jamia Hamdard University, Delhi. During the petitioner’s temporary stay in Delhi, he began to feel severe pain in his heart and was admitted in Apollo Hospital, Delhi. The total hospital bill came to Rs. 4,68,974.66/- and upon resuming his duties with the State Forest Corporation back home, the petitioner requested that he be reimbursed the aforementioned amount for his hospital bill. When the State Forest Corporation in Jammu and Kashmir refused to consider the petitioner’s claim, he filed OWP No. 1747/2011 which led to the respondents being directed to consider the petitioner’s claim. However upon considering the petitioner’s claim, the respondents rejected it on grounds that the medical certificate had not been submitted in the prescribed proforma. The petitioner’s counsel pointed out as per Rule 6(5) of the Jammu and Kashmir Civil Services (Medical Attendance and Allowance) Rules 1990 “where a beneficiary resides temporarily outside the State and falls ill there suddenly and is advised admission in a hospital, he will, on production of necessary vouchers and certificates, be allowed reimbursement of hospital charges including cost of drugs and charges for investigations, provided it is recommended by the Director Health Services of the State after being satisfied that the beneficiary had suddenly fallen ill outside the State where he resided temporarily and was not already suffering from it before his departure from his home town”.

Sr. No.203 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CJ Court LPA No.307 2019 Mohammad Gulzar Mir Through: Mr. Sheikh Manzoor Ahmad Advocate. Union Territory of J&K and others. Through: Ms. Asifa Padroo AAG. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SANJAY DHAR JUDGE O R D E R 01. Heard Mr. Sheikh Manzoor Ahmad learned counsel for the petitioner and Ms. Asifa Padroo learned AAG for the respondents. The appellant challenges the order of the Writ Court dated 27.09.2019 by which the petition filed by the petitioner appellant was dismissed. The petitioner appellant is seeking reimbursement of medical claim for his treatment at Apollo Hospital Delhi outside the State of Jammu and Kashmir and he has been non suited by the authorities as well as by the Writ Court on the ground that he has failed to produce the certificate of the Director Health Services as required under Rule 6 of the Jammu and Kashmir Civil ServicesRules 1990. The facts of the case clearly reveal that the petitioner was working as a Block Manager with the State Forest Corporation. He had proceeded on ten days leave from 21.02.2011 to 02.03.2011 for the purposes of getting his son LPA No.307 2019 admitted in Jamia Hamdard University Delhi. During his temporary stay at Delhi for this purpose he suffered a severe cardiac pain and was hospitalised in Apollo Hospital Delhi where he incurred a expenditure of Rs. 4 68 974.66 . The petitioner appellant on resuming duties claimed reimbursement of the said amount when his claim was not considered he filed OWP No.1747 2011 and the same was disposed of vide order dated 16.05.2017 with the direction to the respondents to consider the claim of the petitioner in accordance with the Rules and the judgment referred therein. In the light of the aforesaid direction the claim of the petitioner was considered and rejected vide order dated 09.07.2018 for want of production of the certificate in the prescribed proforma. The writ petition has also been dismissed on the same ground. 06. A perusal of the aforesaid Rules reveal that treatment outside the State and even reimbursement of expenses thereof are admissible on fulfilment of certain conditions. In this regard Rule 6(5) is relevant which provides that where a beneficiary resides temporarily outside the State and falls ill there suddenly and is advised admission in a hospital he will on production of necessary vouchers and certificates be allowed reimbursement of hospital charges including cost of drugs and charges for investigations provided it is recommended by the Director Health Services of the State after being satisfied that the beneficiary had suddenly fallen ill outside the State where he resided temporarily and was not already suffering from it before his departure from his home town. There is no dispute to the fact that appellant had no previous history of heart ailment and he suffered the stroke all of a sudden while living LPA No.307 2019 temporarily in Delhi and as such has to be treated outside the State on emergency basis. In this view of the matter it was incumbent upon the Director Health Services Kashmir to have considered the matter of the petitioner for grant of necessary certificate. The petitioner appellant cannot be non suited solely on the above technicality if otherwise his claim is genuine. In view of the aforesaid facts and circumstances we direct the petitioner appellant to approach the Director Health Service Kashmir for necessary certificate as contemplated by Rule 6(5) of the aforesaid Rules and in case the petitioner appellant so approaches him within a period of two weeks from today the Director Health Services Kashmir shall verify the necessary facts if necessary after summoning the relevant record and accord due consideration to the representation preferably within six week and if satisfied may issue the necessary certificate. Once the said certificate is issued by the Director Health Services Kashmir the petitioner appellant may produce it before the competent authority and his claim for reimbursement would be reconsidered on that basis irrespective of earlier orders. The order impugned in the writ petition and the order of the learned Single Judge shall stand eclipsed. The appeal is accordingly disposed of in the aforesaid terms. JUDGE CHIEF JUSTICE SANJAY DHAR) Srinagar Abdul Qayoom PS LPA No.307 2019

Government can review their decision regarding promotion and transfer, backed up by reason and facts: Gauhati High Court

The transfer of any public officer or employee is decided upon by the authorities, and can only be challenged on grounds of Public Interest or due to exigency of service. Private Interest or Will cannot determine the place of posting nor can a review of a posting order by the Government be considered arbitrary until the facts or reason say otherwise.  This auspicious judgment was passed by the Gauhati High Court in the matter of Jagat Chandra Das V. Anupam Khargaria & Ors. [I.A.(Civil)/3/2021] by Honourable Justice Michael Zothankhuma. The petition was filed against the withdrawal of promotion and subsequent transfer and promotion to another place by the PWD officials who accepted the request of the respondent for such posting. This was considered to be illegal and violative of Public Interest.  The Court in response to the petition vis an order stayed this transfer and promotion and directed the officials to explain by way of an affidavit, as to why the promotion and transfer were altered and issued. The Petitioner alleged that the transfer order was issued under mala fide intention and hence was an illegal posting order, which is not in public interest, therefore, should be set aside. The respondent on whose request the transfer was allegedly decided was contended to be suffering from Liver Cirrhosis and hence as per Government policy was allowed to remain in his last place of posting till his retirement. He relied on Narayan Chowdhury Vs. State of Tripura & Ors. for stopping the transfer, in response to which the court stated that, “The facts of the above case are not similar to the facts of this case, as the hometown of the petitioner is not the place of working. Thus, the case is not applicable. Further, there is no Government Policy to the effect that a Government servant should be allowed to remain in his last place of posting till his retirement, even though the Government servant has completed his normal tenure of posting of three years.”  Additionally, the court observed that, “The alleged ailment of the respondent did not prevent him from doing his work. And the State respondents have taken a new ground to cancel his transfer order which was never an issue.” The court relied on the case of State of U.P. Vs. Gobardhan Lal, (2011) 4 SCC 402, to assert that every transfer at the instance of an M.P. or MLA would not be considered to be vitiated since transfer is the prerogative of the authorities concerned and the court should not normally interfere except when the transfer order is shown to be vitiated. The Court was of the view that here, “The cancellation of the transfer of the respondent does not seem to have been made in public interest or due to exigency of service, since the State respondents added a new ground, i.e., respondent was entrusted with lots of ongoing development works which would be effected” but “the petitioner does not have a right to be posted to a particular place. Further, there is nothing to show that any legal right of the petitioner has been violated by the respondents, by changing his place of posting.” 

Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 Gauhati High Court Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 Page No.# 1 10 THE GAUHATI HIGH COURT 3 2021 JAGAT CHANDRA DAS S O LATE MOHRAM DAS R O CHANDMARI MILONPUR PATH GHY KAMRUP(M) ASSAM PIN 781021 VERSUS ANUPAM KHARGARIA AND 3 ORS S O LATE SAILYADHAR KHARGARIA RESIDENT OF ADARSHA NAGAR MILANPUR NAGAON 782001 2:THE STATE OF ASSAM REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI 6 KAMRUPASSAM 3:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT DISPUR GUWAHATI 781006 4:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENTCHANDMARI GUWAHATI Advocate for the Petitioner : S N SARMA Advocate for the Respondent Page No.# 2 10 Linked Case : WP(C) 5108 2020 S O LATE SAILYADHAR KHARGARIA RESIDENT OF ADARSHA NAGAR Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM GUWAHATI 6 KAMRUP M ASSAM 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT DISPUR GUWAHATI 781006 3:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENTCHANDMARI GUWAHATI 3 4:SRI JAGAT CH. DAS EXECUTIVE ENGINEERHeard Mr. A. D. Choudhury learned counsel for the petitioner. Also heard Mr. Page No.# 3 10 D. Nath learned counsel for the respondent Nos. 1 2 & 3 and Mr. S. N Sarma learned Senior counsel for the respondent No. 4 assisted by Mr. K. Kalita. No one appears for the respondent No. 5 though notice was issued to him on 04.12.2020. Though there is no return of A D card or unserved notice notice is deemed to be served upon the respondent No. 5 in terms of Section 27 of the General Clauses Act 2. The brief facts of the case is that vide notification dated 06.11.2020 a number of Engineers in the PWD were transferred. In the said notification dated 06.11.2020 the petitioner was promoted and allowed to officiate as Executive EngineerPWD and posted as Executive EngineerPWRD Morigaon District Territorial Road Division Morigaon w.e.f. the date the petitioner took charge from the respondent No Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 4. The notification also directed the petitioner to hand over the charge of Assistant Executive Engineerto the senior most AEof the Division. The petitioner accordingly joined at his new place of posting at Morigaon District Territorial Road Division on 09.11.2020 by submitting his joining letter. The joining letter dated 09.11.2020 was addressed to the respondent No. 4 requesting him to take necessary action for handing over and taking over charge at an early date. However the same not done by the respondent no.4 3. By the notification dated 06.11.2020 the respondent No. 4 was in turn transferred to the post of EEPWRD Bakulia Road Division Bakulia Karbi Anglong. However the State respondents subsequently issued a notification dated 12.11.2020 whereby the posting of the petitioner and the transfer of the respondent No. 4 were both cancelled 4. Being aggrieved by the same the petitioner filed WP(C) 4962 2020. However the said writ petition was withdrawn with liberty to approach this Court again as because on 25.11.2020 another notification was issued whereby the petitioner was posted as EE(C) PWRD Bakulia Road Division Karbi Anglong and placed at the disposal of the Karbi Anglong Autonomous Council. The petitioner being aggrieved by the same has filed the present writ petition 5. This Court vide its Order dated 01.12.2020 stayed the operation of the Page No.# 4 10 Notification dated 12.11.2020 by which the posting of the petitioner and transfer of the respondent No. 4 was both cancelled and also stayed the Notification dated 25.11.2020 by which the petitioner was posted as EE(C) PWRD Bakulia District Territorial Road Division Bakulia Karbi Anglong. The Order dated 01.12.2020 also stated that the State respondents were to explain by way of an affidavit as to why the above two orders that had been stayed had been issued 6. The petitioner s counsel submits that the impugned notification dated 25.11.2020 by which the petitioner has now been posted as AE(C) PWRD Bakulia Road Division Karbi Anglong has been made due to the alleged mala fide action on the part of the respondent No. 5 who is the local MLA of Jagiroad. He submits that the posting has been made at the instance of the respondent No. 4 and the respondent No. 5 and as such the illegal posting order which is not in public interest should be 7. Mr. S. N. Sarma learned Senior counsel appearing for the respondent No. 4 submits that the respondent No. 4 is suffering from liver cirrhosis and as the respondent No. 4 was going to retire on 31.12.2021 the respondent No. 4 had submitted an application to the State respondents to allow him to continue in his present place of posting till his retirement. He further submits that as per Government policy a Government employee is allowed to remain in his last place of posting till his retirement. He submits that though the petitioner s home district and home town is Guwahati the petitioner should be allowed to remain in Morigaon till his retirement as it is his last place of posting as on date. In support of his submission the learned Senior counsel has relied upon the judgment of this Court in the case of Narayan Chowdhury Vs. State of Tripura & Ors. reported in 1999GLT 360. He also submits that as the transfer order has not been implemented the transfer order cannot be acted upon in view of the guidelines laid down by the Election Commission of India The counsel for the respondent No. 4 also submits that the respondent No. 4 has been serving in Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 Morigaon District for around 7 years and has been holding the post of EE(C) Morigaon PWRD Morigaon District Territorial Road Division for more than 3 years Page No.# 5 10 8. Mr. D. Nath learned counsel for the State respondents submits that the earlier transfer order was cancelled due to the prayer made by the respondent No. 4 for remaining in his place of posting the respondent No. 4 was suffering from liver cirrhosis and as he was going to retire on 31.12.2021. Mr D. Nath submits that as he has brought the official records the State respondents will not be filing any affidavit as their stand is reflected in the official records 9. I have heard the learned counsels for the parties 10. The records show that the respondent No. 4 had made an application dated 05.12.2020 against his transfer vide Notification dated 06.11.2020 to allow him to continue to work at Morigaon District Territorial Road Division as he was suffering from liver cirrhosis and was being treated by Dr. B.D. Goswami since 2014. Also as he had less than 1 year before superannuation he should be allowed to retire in Morigaon 11. In the case of Narayan Chowdhury Vs. State of Tripura & Ors.the petitioner therein had been transferred from his hometown to another place while the petitioner had about 1 year 10 months left before his retirement. The petitioner had challenged the transfer order on the ground that there was a Government instruction policy wherein Government servants were allowed to stay in their home station on the eve of their retirement. This Court thereafter set aside the transfer order which resulted in the petitioner remaining in his hometown till his retirement. The facts of the above case are not similar to the facts of this case as the hometown of the petitioner herein is not Morigaon but Guwahati. As such the case of Narayan Chowdhury Vs. State of Tripura & Ors Supra) is not applicable to the facts of this case. Further there is no Government Policy produced by the respondents to the effect that a Government servant should be allowed to remain in his last place of posting till his retirement even though the Government servant has completed his normal tenure of posting of three years 12. With regard to the stand of the respondent No. 4 that he is suffering from liver cirrhosis there is no medical certificate prescription bill etc. in the official records in Page No.# 6 10 support of the respondent No. 4 s submission that he is suffering from liver cirrhosis. However the respondent No 4 in I.A.(C) No. 3 2021 has submitted a Prescription dated 18.11.2020 issued by one Dr. Sanjay Kishor and a Prescription dated 20.11.2020 issued by Dr. B.D. Goswami. It is surprising that while the application made by the respondent No. 4 for cancellation of his transfer was made vide letter dated 09.11.2020 the medical prescriptions are of subsequent dates i.e. 18.11.2020 and 20.11.2020 The above being said the medical prescriptions shows that the petitioner has been asked to have medicines and there is nothing to show that the petitioner cannot work elsewhere just because he is having liver cirrhosis. Further the Prescription dated 20.11.2020 issued by Dr. B.D. Goswami shows that the petitioner has not been regular in his follow upas the prescription states "CLD Ethanol related) IRREG follow up". The medical prescriptions that have been annexed to the Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 respondent No. 4 s application for vacating the interim order and the stand taken by the respondent No. 4 clearly show that his alleged ailment has not prevented him from doing his work. The medical prescription does not show that the petitioner is incapable of doing his work. In fact the note dated 10.12.2020 written by the Deputy Secretary states as follows: Later it was understood that Sh. Jagat Ch. Das has been suffering from liver cirrhosis and he has been entrusted with lots of ongoing division works in the Morigaon District which would be affected due to the transfer of Sh. Das. Moreover Sh. Jagat Ch. Das has only about 14 more months of Government servicebefore his superannuation. Hence in the interest of public service the transfer of Sh. Jagat Ch. Das EE(C) has been stayed and consequently the posting on promotion of Sh. Kharghari has also been cancelled vide Notification No. CON.41 2012 Pt III 11A dated The above note clearly shows that the work of the respondent No. 4 is not impeded by his aliment Instead the State respondents have taken a new ground to cancel his transfer order which was never an issue. This is not to say that a Government cannot review its own decision. However the same has to be backed up by reason and facts and cannot be arbitrary 13. The petitioner has levelled allegation of malafide against the respondent No. 5 who is a local MLA. In the case of Mohd. Masood Ahmad vs. State of U.P. reported in Page No.# 7 108 SCC 150 the Apex Court has held that even if a person is transferred on the recommendation of an MLA that by itself would not vitiate the transfer order as it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case the allegation is that the MLAhas a role to play in cancellation of the transfer of the respondent no.4 which in turn effected the posting of the petitioner. The above being said as the petitioner has made an allegation of malafide against the respondent No. 5 the records are being perused. The official records have been produced before this Court. In the official records there is no mention of the respondent No. 5. As such this Court on the basis of the official records that are produced herein finds that there is nothing to prove the allegation of malafide made by the petitioner against the respondent no.5. In the case of State of U.P. Vs. Gobardhan Lal reported in 2011) 4 SCC 402 the Apex Court has held that transfer is the prerogative of the authorities concerned and the court should not normally interfere except when the transfer order is shown to be vitiated by malafides in violation of any statutory provision or had been issued by an authority not competent to issue the order of transfer. This Court finds that none of the above conditions have been attracted in the present case 14. It is an admitted fact that the normal tenure of posting of a Government servant is usually 3 years. It is also seen that the promotion posting of the writ petitioner and transfer of the respondent No. 4 vide Notification dated 06.11.2020 was part of the wholesale posting and transfer of officers officials made in public interest and in the exigency of service. However the cancellation of the transfer of the respondent No. 4 does not seem to have been made in public interest or due to Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 exigency of service inasmuch as while the respondent No. 4 had prayed for cancellation of his transfer on grounds of his ailment and on the ground that he was going to retire on 31.12.2021 the State respondents have also added a new ground i.e. respondent No. 4 had been Page No.# 8 10 entrusted with lots of ongoing development works which would be effected. In the case of State of Assam Vs. Dilip Kumar Sarma & Ors. reported in 2011GLT 724 the Division Bench of this Court has held that a transfer order can be interfered with if it is not made in public interest or due to exigency of service. However in the present case the transfer of the respondent No. 4 and the posting of the petitioner has been cancelled 15. The submission made by the counsel for the respondent No. 4 that the respondent No. 4 s transfer order cannot be acted upon due to the directions laid down by the Election Commission of India requires that para 6 of the letter dated 26.02.2021 issued by the Election Commission of India is reproduced. The same is accordingly reproduced below: 6. "The Commission further directs that there shall be a total ban on the transfer of all officers officials connected with the conduct of the election. These include but are not restricted to: i) The Chief Electoral Officer and Additional Joint Deputy Chief Electoral Officers ii) Divisional Commissioners iii) The District Election Officers Returning Officers Assistant Returning Officers and other Revenue Officers connected with the Conduct of Election iv) Officers of the Police Department connected with the management of election like range IGs and DIGs Senior Superintendents of Police and Superintendents of Police Sub Divisional Police Officers like Deputy Superintendents of Police and other Police O f f i c e r s w h o a r e d e p u t e d t o t h e C o m m i s s i o n u n d e r S e c t i o n 2 8 A o f t h e Representation of the People Act 1951 v) The transfer orders issued in respect of the above categories of officers prior to the date of announcement but not implemented till date should not be given effect to without obtaining specific permission from the Commission in this regard vi) This ban shall be effective till the completion of the election. The Commission further directs that the State Governments should refrain from making transfers of senior officers who have a role in the management of election in the State vii) In those cases where transfer of an officer is necessary on account of administrative exigencies the concerned State Government may with full Page No 9 10 justification approach the Commission for prior clearance." This Court is of the view that Para 6(v) of the said directions would not be applicable to the case in hand inasmuch as there is nothing to show that the petitioner is connected with the conduct of Assembly Elections to be held in the State of Assam and also due to the Indian Kanoon Jagat Chandra Das vs Anupam Khargaria And 3 Ors on 31 March 2021 fact that there has been a stay of the impugned Notifications dated 12.11.2020 and 25.11.2020 vide Order dated 01.12.2020 passed by this Court It is noticed that though this Court had stayed the Notification dated 12.11.2020 and 25.11.2020 which would in effect revive the earlier transfer order of the respondent No. 4 issued vide Notification dated 06.11.2020 it is surprising to learn from the pleadings that respondent No. 4 is continuing to do work as EEPWRD Morigaon District Territorial Road Division 16. Be that as it may on considering the facts this Court is of the view that though the manner in which the petitioner s posting was cancelled vide Notification dated 12.11.2020 and his subsequent posting made vide Notification dated 25.11.2020 is not in public interest or due to exigency of service the petitioner does not have a right to be posted to a particular place. Further there is nothing to show that any legal right of the petitioner has been violated by the respondents by changing his place of posting from Morigaon District Territorial Road Division to Bakulia Road Division Karbi Anglong. Due to the above reasons this Court is not inclined to exercise its discretion in the present case 17. As the petitioner has not been paid his salary from the month of December 2020 the respondents are directed to pay to the petitioner his arrear salary and entitlements within a period of 2weeks from the date of receipt of a copy of this order 18. The writ petition is accordingly dismissed JUDGE Page No.# 10 10 Comparing Assistant Indian Kanoon

Burden of proof cannot be shifted to accused in criminal cases: High Court of Orissa

In a criminal trial, the prosecution needs to establish each and every circumstance with certainty and even if they fail to do so, the burden of proof cannot be shifted to the defence. This issue was addressed by a bench of the High Court of Orissa consisting of Justice S.K. Mishra and Justice Pramath Patnaik in the case of Pradeep Behera v State of Orissa [CRLA No. 228 of 2003] on the 11th of June 2021. The appellant, Pradeep Behera was convicted of murdering his wife, Pratima Behera to whom he was married for 12 years prior to her death. The deceased sustained serious burn injuries which she eventually succumbed to in hospital on 31st July 2002. The appellant was charged under Section 302 and 498A of the Indian Penal Code for murder and harassment of a woman. The Additional Sessions Judge, Bhawaniputra observed that as the accused was unable to substantiate his claim that his wife had committed suicide and as there was no other person present at the time of her death, the circumstances of the case establishes his guilt. As a result of this the appellant was convicted and appealed to the High Court to set his conviction aside. The High Court noted that in any criminal trial, the prosecution must establish each and every circumstance beyond reasonable doubt and all circumstances should form a complete chain of events pointing to the guilt of the accused. In the immediate case however, it was pointed out that the Additional Sessions Judge had shifted the burden of proof onto the appellant instead of expecting the prosecution to do fulfil their responsibility. 

HIGH COURT OF ORISSA: CUTTACK. CRLA No.2203 From the judgment of conviction and order of sentence dated 18.07.2003 passed by Shri Sukumar Sahu learned Additional Sessions Judge Bhawanipatna in Sessions Case No.2 4 of 2003 of the court of the learned S.D.J.M. Bhawanipatna). Pradeep Behera Versus State of Orissa . Respondent. For Appellant For Respondent M s. Milan Kanungo Sr. Adv. D. Pradhan S. Nanda Y. Mohanty B. Kanungo and Y.S.P. Bagh. Mrs. Saswata Patnaik Additional Government Advocate. P R E S E N T : SHRI JUSTICE S. K. MISHRA SHRI JUSTICE PRAMATH PATNAIK Date of Hearing 11.11.2020 & 11.06.2021 and Date of Judgment 11.06.2021 S. K. MISHRA J. In this appeal the sole appellant convict Pradeep Behera assails his conviction under Section 302 of the Indian Penal Code 1860 hereinafter referred to as “the Penal Code” for brevity) and sentence to undergo imprisonment for life recorded by the learned Additional Sessions Judge Bhawanipatna in Sessions Case No.2 03of the court of the learned S.D.J.M. Bhawanipatna) vide judgment of conviction and order of sentence dated 18.07.2003. 02. The deceased happens to be the wife of the appellant. They were married for about 12 to 13 years prior to the occurrence. On 30.07.2002 the brother of the deceased received information that deceased Pratima Behera had sustained burn injuries on her person. He immediately rushed to the District Headquarters Hospital Bhawanipatna. On that day also her father Suresh Chandra Joshi also received information and rushed to the District Headquaters Hospital Bhawanipatna and found that the deceased was hospitalized. During treatment she succumbed to the injuries on 31.07.2002 at about 06.45 A.M. Dr. Sanjaya Kumar Behera treated the deceased and reported to the police that said Pratima Behera died of burn injuries. Prior to her death though a request was sent by the doctor for recording of her dying declaration the investigating agency failed to record the dying declaration of the deceased. On 31.07.2002 at about 2.00 P.M. the said Suresh Chandra Joshi the father of the deceased lodged a report before the Inspector In Charge Bhawanipatna Town Police Station Bhawanipatna regarding the incident for which Bhawanipatna Town Police Station Case No.133(29) was registered for commission of offences under Section 498A 302 304B of the Penal Code read with Section 4 of the Dowry Prohibition Act 1961 happens to be the father of the deceased and informant of the case. P.W.2and P.W.3 Jayant Kumar Behera) are brothers of the appellant whereas P.W.5 Pradyumna Kumar Joshi) is the younger brother of the deceased. P.W.13 Pratika Behera @ Chintu) is the minor son of the deceased and the appellant. P.W.4 is a maidservant in the house of the appellant and the deceased. P.W.6 P.W.7 P.W.8and P.W.12a Constable of Bhawanipatna Town Police Station Bhawanipatna are formal witnesses being witnessed to the seizures inquest etc. P.W.9 treated the deceased as an injured and submitted report to the police station on 30.07.2002 at 5.00 P.M. P.W.10is the Assistant Surgeon who on examination of the deceased P.W.11 the A.S.I. of Banchhanidhi Choudhury) the S.I. of Police are the two police officers who conducted investigation of the case. In addition to examining of the aforesaid witnesses prosecution also led into evidence ten exhibits and one material object. The post mortem examination report has been marked as Ext.8. Post mortem examination report has been proved through P.W.9 as he was acquainted with the signature and hand writing of Dr. P.P. Swain who had conducted post mortem examination of the dead body of the deceased. 04. Admittedly prosecution witnesses have not supported the case of the prosecution. Except official witnesses all other witnesses have been declared hostile by the prosecution. This fact is borne out from the observations made by the learned Additional Sessions Judge Bhawanipatna at paragraphs 6 and 7 of the impugned judgment. We think it apposite to quote the paragraphs 6 and 7 of the impugned judgment as below: “6. Coming to the facts of the case before this court while arguments were concluded after conclusion of trial learned defence counsel Sri S.K Panda appearing for the accused submitted that prosecution has miserably failed to prove its case beyond all reasonable doubts and even though father and brother of the deceased respectively P.W.1 and 5) have been examined in this case none of them whispered a single word incriminating the accused with the alleged offence and even though the brother P.W.5 was present during inquest over the dead body and has signed in the inquest report he does not state anything incriminating the accused with the alleged offence. the submission of learned Sri S.K. Moreover Panda that F.I.R has not been lodged either by father or by the brother and in such circumstances the accused is entitled to the benefit of doubt and may be acquitted. learned Additional Public Prosecutor Sri 7. B.K. Patra appearing for the state was express thatfairly concedes to the submissions of the learned defence counsel Sri. S.K. Panda.” Judge ....... ... Judge

Furlough to be granted under Rule 3C of Prisons Rules,1959 if no specific averment made under adverse report: Bombay High Court

Furlough to be granted under Rule 3C of Prisons Rules,1959 if no specific averment made under adverse report: Bombay High Court Furlough should be granted periodically irrespective of any reason, merely to enable the prisoner to retain family and social ties and to counter the ill-effects of prolonged time spent in prison. This auspicious judgment was passed by The High Court of Bombay in the Matter of Archana Singh w/o. Virendra Thakur vs The State of Maharashtra and others. [CRIMINAL WRIT PETITION NO. 1157 OF 2021] by Honorable S. S. SHINDE & MANISH PITALE. The facts of the case are the convict has undergone 7 years and 7 months imprisonment and including remission of more than 8 years. The convict applied for furlough, however by order, his prayer for release on furlough had turned down by the concerned authority. Being aggrieved by the order, the convict filed an appeal before the respondent. The said appeal came to be rejected. Learned counsel for the plaintiff and argued that, while refusing to extend the conviction that the life of witnesses is endangered, the observations made by the respondent are ambiguous and generic. The convict’s relatives are ready to stand safe and will keep an eye on the convict’s activities. The prisoner is prepared for the granting of a solvent guarantee and can therefore comply with this Court’s requirements. Learned counsel for the respondents argued that it is not right of the convict to ask for furlough leave and it is highly possible that the convict is likely to abscond if got a furlough and relying upon the reasons assigned in the impugned orders submitted that the petition is devoid of any merits and same may be rejected. The court opined that “except general observations by Respondent, nothing specific is brought on record to hold that in case, the husband of the petitioner is released on furlough he is likely to jump furlough. Therefore, keeping in view the objectives of furlough leave to inmates, we are of the view that the husband of the petitioner is entitled to be released on furlough.”

on 06 04 2021 on 07 04 1606.19APPLN.odt1IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 CRIMINAL APPLICATION NO. 1606 OF 2019 Smt. Jayshri W o Ratan Uchit @ Jayshri W o subhash Bagul Age : 32 years Occ : Household R o Shivajinagar Karmad Tq. Kannad Dist. Aurangabad At present residing at JadhavwadiAurangabad ..APPLICANT VERSUS 1.The State of MaharashtraThrough Police Inspector KannadPolice Station Tq. Kannad Dist. Aurangabad. 2.Shankar Pandurang UchitAge : 39 years Occ : Agri. R o Shivajinagar Kannad Tq. Kannad Dist. Aurangabad. ..RESPONDENTS...Mr.Suvidh S. Kulkarni Advocate for theapplicant. Mr.S.J. Salgare APP for respondent no.1 State. Mr.Yogesh Bolkar Advocate for respondent no.2. … CORAM : RAVINDRA V.GHUGE AND B.U.DEBADWAR JJ. RESERVED ON : 24th March 2021 PRONOUNCED ON : 06th April 2021JUDGMENTfor quashing FIR. 2.The applicant prays to quash the FIRNo.0032 2019 registered on the basis of thereport lodged by Shankar Pandurang Uchit on07.02.2019 under section 306 of the IndianPenal CodeatKannad City Police Station Dist.Aurangabad. 3.Heard Mr.Suvidh Kulkarni thelearned Advocate for the applicant Mr.YogeshBolkar the learned Advocate for respondentNo.2 and Mr.S.J. Salgare the learnedAdditional Public Prosecutor for respondentno.1 State. 4.The allegations averments made inthe FIR in short are that deceased RatanPandurang Uchit was elder brother of firstinformant Shankar Pandurang Uchit. He wasagriculturist by profession. His first wifewas a Cancer patient. She had committedsuicide getting depressed with Cancer ofwhich she was suffering. Deceased Ratan hastwo children born from the first wife. Afterthe death of first wife Ratan performedsecond marriage with applicant on 11.09.2018 as per Hindu rites and customs prevailing in on 06 04 2021 on 07 04 1606.19APPLN.odt3their community at Mayur Park area ofAurangabad. The first husband of theapplicant had died prior to her marriage withdeceased Ratan Uchit. After marriage theapplicant used to pick up quarrel withdeceased Ratan Uchit frequently on pettyreasons. Ratan Uchit used to inform about thesame to his younger brother i.e. firstinformant Shankar Uchit. On 07.02.2019 atabout 8.30 a.m. when Shankar Uchit firstinformant had been to his field situatedwithin the limits of village Makranpur so asto bring milk at that time his cousinbrother Pandit Uchit informed him that RatanUchit has committed suicide by hanginghimself to the Neem Tree standing on thedyke of their field. Upon knowing the same Shankar Uchit rushed to the aforesaid spotand saw his brother Ratan Uchit hanging tothe tree. In pursuance of the informationreceived the Police reached there removedthe dead body of Ratan Uchit from the NeemTree to which he was hanging and preparedthe inquest panchanama. During the course ofdrawing inquest panchanama along with a CellPhone one suicide note was found in thepocket of pant worn by deceased Ratan. Fromthe contents of that suicide note Shankar on 06 04 2021 on 07 04 1606.19APPLN.odt4Uchit first informant has realized that hisbrother Ratan Uchit has committed suicide bygetting fed up with quarrels raised by theapplicant constantly. After performingfuneral and last rituals on the dead body ofRatan Uchit one more suicide note leftbehind by him was found kept near a SpeedMeter of motorcycle bearing no.MH 20 DL 1726.The recitals of the said suicide note wereidentical with the earlier suicide note foundin the pocket of pant of Ratan Uchit.According to Shankar Uchit first informant his brother Ratan Uchit has committed suicideby getting fed up with the quarrels beingraised by the applicant frequently for pettyreasons. Therefore the applicant isresponsible for the suicide death of hisbrother Ratan Uchit. 5.Mr.Suvidh Kulkarni the learnedAdvocate while taking us through the FIR annexed to the application vehemently arguedthat only after four months and six days ofmarriage with applicant Ratan Uchit hascommitted suicide. FIR sought to be quashedhas been registered for the offence ofabetment to commit suicide punishable undersection 306 of the I.P.C. The allegations on 06 04 2021 on 07 04 1606.19APPLN.odt5about abetment made in the FIR are very muchvague in nature. Details of alleged quarrelsdo not find place in the FIR In order tobring home guilt under section 306 of theI.P.C. it is necessary to prove theabetment. Section 107 of the I.P.C. defines`Abetment’. On the basis of the allegationsmade in FIR it cannot be gathered thateither the applicant instigated orintentionally aided deceased Ratan Uchit forcommission of suicide. Allegations made inFIR that the applicant used to pick up pettyquarrels with deceased Ratan Uchitfrequently in any case do not satisfy thedefinition of abetment. When there are noallegations made in the FIR from which it canbe gathered that the applicant intentionallyinstigated her husband Ratan Uchit to commitsuicide and in pursuance of the saidinstigation Ratan Uchit her husbandcommitted suicide there is no propriety indragging the applicant to face the trial which would ultimately result into hisacquittal. 6.In support of his submissions Mr.Kulkarni learned Advocate has placedreliance on the judgment of Coordinate Bench on 06 04 2021 on 07 04 1606.19APPLN.odt6of this Court delivered in the case of Dilipand Ors. Vs. State of Maharashtra and Ors.{2016 All MR4328}.7.Per contra Mr.Yogesh Bolkar thelearned Advocate strenuously argued thatRatan Uchit had committed suicide only afterfour months and six days of the marriageperformed with the applicant. The applicantis a quarrelsome woman. In a short span offour months and few days of the marriage shehad harassed her husband Ratan Uchitmentally to a great extent by picking upquarrels with him frequently for pettyreasons. The applicant has not seriouslydisputed genuineness of suicide notes leftbehind by Ratan Uchit. Both the suicide notesare identical. The suicide notes and recitalsof the FIR lodged by the real younger brotherof Ratan Uchit show that harassment by theapplicant was to such an extent that deceasedRatan Uchit was left with no otheralternative but to end his life. Nothing onrecord indicating that Ratan Uchit wassuffering from mental disease. The applicantalso does not say so. Ratan Uchit wasmentally and physically fit would not havecommitted suicide unless harassment on 06 04 2021 on 07 04 1606.19APPLN.odt7ill treatment meted out by the deceased wasof such a gravity which led him to commitsuicide. According to Mr.Yogesh Bolkar learned Advocate the recitals of FIR are prima facie quite sufficient to make out thecase under section 306 of the I.P.C. againstthe applicant. Therefore the application forquashing FIR is liable to be dismissed. 8.Mr.S.J. Salgare the learnedAdditional Public Prosecutor for respondentno.1 State submitted that having regard tothe allegations made in the FIR and recitalsof both the suicide notes left behind byRatan Uchit it cannot be said that the FIRis wholly imaginary. According to Mr.Salgare the investigation is almost completed andthus accordingly prayed for dismissal ofapplication. 9.Practically in all matters underSection 482 of the Code of Criminalprocedure 1973 the accused approaches theCourt on the ground that the FirstInformation Reporton the face of it does not disclose ingredients that wouldconstitute a cognizable offence. Thus theinherent power of the High Court in it’s on 06 04 2021 on 07 04 1606.19APPLN.odt8jurisdiction under Section 482 is invokedfor seeking the quashing of the FIR. 10.In C.B.I. Vs. Tapan Kumar Singh6 SCC 175 : AIR 2003 SC 4140 theHonourable supreme court has held inparagraph 22 that “The law does not requirethe mentioning of all the ingredients of theoffence in the FIR. It is only aftercompletion of the investigation that it maybe possible to say whether any offence ismade out on the basis of the evidencecollected by the investigating agency.” It isobserved that an FIR is not an encyclopediawhich must disclose all the facts and detailsrelating to the offence alleged to have beencommitted. It requires no debate that an FIRis merely a report by the informant about thecommission of a cognizable offence and itcannot be ruled out that minute details maynot be mentioned. It cannot be ignored thatan FIR pertains to an offence which isalleged to have been committed and theinformant in a disturbed state of mind andshaken on account of a serious offencecommitted approaches a police station forrecording an FIR. on 06 04 2021 on 07 04 1606.19APPLN.odt911.In the State of Punjab Vs. DharamSingh 621 : 1987 Supp. SCC89 the Honourable Supreme Court held thatthe High Court had erred in quashing the FIRby going beyond the averments to consdierthe merits of the case even before theinvestigating agency has embarked upon thelegal exercise of collecting evidence.12.In Kurukshetra University Vs. Stateof Haryana4 SCC 451 : AIR 1977 SCC2229( a Three Judges bench) the HonourableSupreme Court has observed thus: “It surprises in the extremethat the High Court thought thatin the exercise of its inherentpowers under Section 482 CriminalProcedure Code it could quash andFIR. The Police had not evencommenced investigation into thecomplaint filed by the warden ofthe University and no proceedingat all was pending in any Court inpursuance of the FIR. It ought tobe realized that inherent powersdo not confer any arbitraryjurisdiction on the High Court toact according to its whim orcaprice.” 13.In Geeta Mehrotra and another Vs. on 06 04 2021 on 07 04 1606.19APPLN.odt10State of uttar Pradesh and another 10SCC 741 the Honourable Supreme Court hasheld that in the absence of any specificallegation and an FIR prima facie indicating no case against the co accused the Court would have the power to quash anFIR.14.In Parbatbhai Aahir alias ParbatbhaiBhimsinhbhai Karmur and others vs. State ofGujarat and another 9 SCC 641 theHonourable supreme Court has laid down theguiding principles to be considered indetermining whether an FIR could be quashed as under: “(1) Section 482 CrPC preserves theinherent powers of the High Courtto prevent an abuse of the processof any court or to secure the endsof justice. The provision does notconfer new powers. It onlyrecognises and preserves powerswhich inhere in the High Court.The invocation of thejurisdiction of the High Court toquash a first information report ora criminal proceeding on the groundthat a settlement has been arrivedat between the offender and thevictim is not the same as theinvocation of jursidiction for thepurpose of compounding an offence. on 06 04 2021 on 07 04 1606.19APPLN.odt11While compounding an offence thepower of the court is governed bythe provisions of Section 320 CrPC.The power to quash under Section482 is attracted even if theoffence is non compoundable.In forming an opinionwhether a criminal proceeding orcomplaint should be quashed inexercise of its jurisdiction underSection 482 the High Court mustevaluate whether the ends ofjustice would justify the exerciseof the inherent power.While the inherent power ofthe High Court has a wide ambit andplenitude it has to be exercised(i) to secure the ends of justice orto prevent an abuse of theprocess of any court.In the exercise of thepower under Section 482 and whiledealing with a plea that thedispute has been settled the HighCourt must have due regard to thenature and gravity of the offence.Heinous and serious offencesinvolving mental depravity oroffences such as murder rape and on 06 04 2021 on 07 04 1606.19APPLN.odt12dacoity cannot appropriately bequashed though the victim or thefamily of the victim have settledthe dispute. Such offences are truly speaking not private innature but have a serious impactupon society. The decision tocontinue with the trial in suchcases is founded on the overridingelement of public interest inpunishing persons for seriousoffences.In such a case the HighCourt may quash the criminalproceeding if in view of thecompromise between the disputants the possibility of a conviction isremote and the continuation of acriminal proceeding would causeoppression and prejudice andThere is yet an exceptionto the principle set out in on 06 04 2021 on 07 04 1606.19APPLN.odt13Propositionsandabove Economic offences involving thefinancial and economic well being ofthe State have implications whichlie beyond the domain of a meredispute between private disputants.The High Court would be justified indeclining to quash where theoffender is involved in an activityakin to a financial or economicfraud or misdemeanour. Theconsequences of the act complainedof upon the financial or economicsystem will weigh in the balance.” 15.In the light of the aforesaidsubmissions made by the learned Advocates ofboth the sides and the crystalised positionof law for invocation of powers under section482 of the Cr.P.C. we have carefully gonethrough the FIR. It is pertinent to note thatthe marriage between Ratan Uchit and theapplicant was the second marriage for both ofthem. It is evident from the record thatRatan Uchit has died due to hanging on thetree only after four months and six days ofthe marriage with the applicant. Theapplicant has not seriously disputed thenature of death of her husband Ratan. Thedispute is only about abetment. It is settledposition of law that intention is theconcomitant of the abetment. Merely for the on 06 04 2021 on 07 04 1606.19APPLN.odt14reason that details of quarrels alleged tohave been raised by the applicant with herhusband Ratan Uchit have not been given inthe FIR an inference cannot be drawn thatthe alleged quarrels had no nexus with thesuicide death of Ratan Uchit. The allegationsabout quarrels being picked up by theapplicant with deceased Ratan Uchitfrequently are supported by two suicidenotes left behind by deceased Ratan Uchit.There is nothing on record showing that RatanUchit was suffering from any mental diseaseor chronic ailment. When Ratan was mentallyand physically fit he had no reason tocommit suicide unless harassment meted outby the applicant was of such nature andextent which would compel him to commitsuicide. 16.In Dilip and otherstheCoordinate Bench of this Court afterconsidering the various judgments of theHon’ble Supreme Court has held as under : “unless there is clear mens rea tocommit an offence or active act ordirect act which led the deceased tocommit suicide seeing no option or the on 06 04 2021 on 07 04 1606.19APPLN.odt15act intending to push the deceased intosuch a position the trial against theaccused under Section 306 of the IndianPenal Code in our considered view would be an abuse of process of law.”17.In Dilip and othersaJudicial Officer had committed suicide on histransfer to Taluka place from the districthead quarters by his superior JudicialOfficer. Except the grievance of transfer the deceased Judicial officer had no othergrievance against his superior JudicialOfficer. In suicide note Junior JudicialOfficer who committed suicide has expressedanguish against the Senior Judicial Officer.Having regard to all these facts theCoordinate Bench of this Court had quashedthe FIR. 18.The facts of the case at hand arealtogether different. Ratan Uchit wasmentally and physically fit person hascommitted suicide only within four months andsix days after the marriage with theapplicant and it is alleged in the FIR andtwo suicide notes left behind by deceasedRatan Uchit that the applicant used to pick on 06 04 2021 on 07 04 1606.19APPLN.odt16up quarrels with him frequently. Therefore he was fed up and committed suicide. In viewof these material allegations made in the FIRand two suicide notes left behind by deceasedRatan Uchit at this juncture inferencecannot be drawn that the applicant did notinstigate her husband Ratan Uchit to commitsuicide or there was no intention behind thequarrels which she used to pick up with herhusband frequently. Only after trial thismaterial aspect can be decided. Therefore itis not proper to quash the FIR gettinginfluenced with the submission that theapplicant had no intention to drive herhusband Ratan Uchit to commit suicide. 19.In view of above we are notinclined to quash the FIR. Accordingly theapplication is rejected.(RAVINDRA V. GHUGE J.)SGA

Court cannot issue directions, to the defendants if they are outside the territorial reach of this Court: High Court Of New Delhi

The plaintiff seeks a permanent injunction, restraining the defendants from using the trademark “TATA”, as part of the name under which their crypto currency is made available to the public and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE C. HARI SHANKAR, in the matter TATA SONS PRIVATE LIMITED V. HAKUNAMATATA TATA FOUNDERS & ORS. dealt with an issue mentioned above. The plaintiff is a company incorporated in India. Though the plaint avers that documents showing involvement of the plaintiff, its subsidiaries and group companies in financial services including crypto currency, have been filed with the plaint, the documents with the plaint do not indicate that the plaintiff is itself dealing in crypto currency under any brand name or trade mark, They also mentioned that  Defendants 1 and 2 are situated in the U.K. and the U.S. respectively. They deal in crypto currency, under the name “TATA coin/$TATA” The first question that arises for consideration is, therefore, whether the plaintiff can seek an injunction against the defendants’ mark, the defendants being located outside the sovereign borders of India and, therefore, statutorily outside the reach of the Trademarks Act, 1999, as well as the Code of Civil Procedure, 1908 (CPC). Mr. Pravin Anand, learned counsel for the plaintiff, asserts the existence of territorial jurisdiction of this Court, over the defendants, on the following grounds few are mentioned down below: In support of his submissions, He relied, further, on (India TV) Independent News Services Pvt. Ltd. v. India Broadcast Live LLC3 , World Wrestling Entertainment v. Reshma Collections4 , Juggernaut Books Pvt. Ltd. v. Ink Mango Inc5 , Banyan Tree Holdings (P) Ltd. v. A Murali Krishna Reddy6 , Millennium & Copthorne International Ltd. v. Aryans Plaza Services Pvt. Ltd.7 and Exxon Mobil Corporation v. Exon Corp Pvt. Ltd.8 ( Case law) Whereas The defendants filed an application, under Order XXXIX Rule 4 CPC, for vacation of the injunction. One of the contentions advanced by the defendants was that they were companies in the US and the UK with no Indian presence. As such, the authority of this Court to issue any interlocutory injunction against the defendants was contested. Mr. Anand has also pointed out that, on the Twitter Page of Defendant 1, various persons from India posted queries regarding the process to be followed, to purchase the defendants’ crypto currency. It is not the case of the plaintiff that the defendants responded to these queries and invited customers from India to purchase its product. The website of the defendants is accessible across the world and, therefore, interested persons across the world could post queries on the website.  And also for the same reason, the fact that the defendants’ website has 50 visitors from India every day (which, incidentally, is a remarkably small number) and that there was considerable internet traffic from India to the website of Defendant 1 can also not constitute a basis to indicate that Defendant 1 was selling its crypto currency in India or was intentionally targeting India.They also told that the submissions of Mr. Pravin Anand do not, in my considered view, make out the existence of the requisite “connection” between the defendants’ activities and India. The court perused the facts and argument’s  presented, it was of the opinion that- “As a result, I am of the prima facie opinion that this Court cannot issue directions, as sought, to the defendants as they are outside the territorial reach of this Court. As this is a prima facie view, let the plaint be registered as a suit and summons to be issued thereon, returnable before the Joint Registrar on 21st December, 2021. Pleadings be completed before the Joint Registrar, and admission and denial of documents carried out, in accordance with the provisions of the CPC read with the Delhi High Court (Original Side) Rules, 2018 and the Commercial Courts Act, 2015. CS(COMM) 316/2021 Page 22 of 22. The prayer for interim relief is declined. IA 8000/2021 is dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14th July 2021 Pronounced on: 26th October 2021 CS(COMM) 316 2021 & I.A.8000 2021 TATA SONS PRIVATE LIMITED ..... Plaintiff Through: Mr. Pravin Anand and Mr. Achuthan Sreekumar Advs. HAKUNAMATATA TATA FOUNDERS & ORS.. Defendants Through: Mr. Mrinal Ojha Mr. Trinath Tadakamalla Mr. Debarshi Dutta and Mr. Aayush Kevlani Advs. for Defendant No. 3 GoDaddy.com LLC HON BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT 26.10.2021 A seminal issue arises for consideration in the present case. The plaintiff is a company incorporated in India. Though the plaint avers that documents showing involvement of the plaintiff its subsidiaries and group companies in financial services including crypto currency have been filed with the plaint the documents with the plaint do not indicate that the plaintiff is itself dealing in crypto currency under any brand name or trade mark. They do indicate however the plaintiff is under its well known brand CS(COMM) 316 2021 name trademark “TATA” providing a platform for trading in crypto currency. Defendants 1 and 2 are situated in the U.K. and the U.S. respectively. They deal in crypto currency under the name “TATA coin $TATA”. None of the defendants has any outlets in India and it is not the case of the plaintiff that the defendants are carrying out any overt manufacturing or marketing activities within India. The plaintiff seeks a permanent injunction restraining the defendants from using the trademark “TATA” as part of the name under which their crypto currency is made available to the public or as part of their corporate name or domain name. Admittedly the defendants’ mark “TATA coin $TATA” is not registered in India. The first question that arises for consideration is therefore whether the plaintiff can seek an injunction against the defendants’ mark the defendants being located outside the sovereign borders of India and therefore statutorily outside the reach of the Trademarks Act 1999 as well as the Code of Civil Procedure 1908 6. Mr. Pravin Anand learned counsel for the plaintiff asserts the existence of territorial jurisdiction of this Court over the defendants on the following grounds: a) The defendants’ crypto currency can be purchased by any person in India from the defendants’ website. CS(COMM) 316 2021 b) There is an admission in the “White Paper” of Defendant 1 that it was involved in financial activities relating to India. c) Various persons from India had posted queries on the Twitter page of Defendant 1 regarding the modality for purchase of its “TATA coin $ TATA” currency. d) Defendant 1’s website www.hakunamatata.finance had 50 visitors from India each day. India was second in the list of countries with highest internet traffic to the www.hakunamatata.finance website. The Telegram page of Defendant 1 indicated that it had several Indian followers members. g) These facts that there was “purposeful availment” by the defendants of the jurisdiction of this Court and they had made their crypto currency under the infringing mark available for purchase to customers in India and specifically in Delhi. Reliance was particularly placed on the webpage of Defendant 1 which contained a QR Code and instructions on how to purchase the crypto currency of Defendant 1 under the name “TATA coin $TATA”. h) The requisite “connection” between the activities of the defendants and prejudice caused to the plaintiff and customers in India undoubtedly existed. CS(COMM) 316 2021 The “effect” of the defendants infringing activity was also felt within the jurisdiction of this Court as the defendants’ crypto currency could be purchased online by anyone located within such jurisdiction. Additionally the availability of the defendants’ crypto currency under the allegedly infringing marks “TATA coin $TATA” had adversely affected the plaintiff’s business and had resulted in dilution of its goodwill. This too contributed to the “effect” felt within the jurisdiction of this Court of the defendants’ activities. The “whois” link on the defendants’ website did not reveal any data on the basis of which the defendants could be identified. They had therefore completely masked their identity. In this connection paras 35 and 36 of the plaint aver the website the Defendants “35. Any person including persons located within the territorial jurisdiction of this Hon ble Court can www.tatabonus.com to sell and purchase the crypto currency by the name of TATA Coin by scanning the QR Code given on the said website and following the instructions stipulated domain www.tatabonus.com was created registered on 11th June 2021. 36. Further investigations conducted on the internet i.e. M HakunaMatata $TATA Founders is the entity that is the source of the TATA Coin cryptocurrency. The said www.hakunamatata.finance which domain was created and registered on 1st May 2021.” the Defendant No. 1 Interestingly CS(COMM) 316 2021 The three conditions requiring fulfilment for this Court to exercise territorial jurisdiction in the present matter are purposeful availment by the defendants of the jurisdiction of this Court arising of the cause of action from the activities of the defendants within the jurisdiction of this Court and substantial connection between the acts of the defendants or their consequences and the jurisdiction of this Court. All these criteria stood satisfied in the present case. The principle of private international law which requires a foreign defendant to be either residing or carrying on business in India for courts in India to exercise jurisdiction over the defendant was subject to municipal law constraints which includes Section 20 of the CPC. Reliance has been placed for this purpose on the judgment of the Supreme Court in Gramphone Company of India Ltd. v. Birendra Bahadur Pandey1 and of the High Court of Karnataka in Air Bus Industries v. Laura Howell Linton2. m) Defendant 1 is also selling apparel such as T shirts website n) There was therefore a clear intent on the part of the defendants to target India as a customer base. 12 SCC 534 2 ILR 1994 KAR 1370 CS(COMM) 316 2021 Any order of injunction passed by this Court in terms of the prayers in the suit was capable of being implemented as all domain name registrars are before this Court. In these circumstances this Court is the most convenient and appropriate forum for the plaintiff to ventilate its grievances and agitate its cause of action. Indeed if this Court were to decline to exercise jurisdiction the plaintiff would not have any forum before which it could agitate its cause of action. In support of his submissions Mr. Pravin Anand relied further on India TV) Independent News Services Pvt. Ltd. v. India Broadcast Live LLC3 World Wrestling Entertainment v. Reshma Collections4 Juggernaut Books Pvt. Ltd. v. Ink Mango Inc5 Banyan Tree Holdings Ltd. v. A Murali Krishna Reddy6 Millennium & Copthorne International Ltd. v. Aryans Plaza Services Pvt. Ltd.7 and Exxon Mobil Corporation v. Exon Corp Pvt. Ltd.8 reads thus: Sub section of Section 134 of the Trademarks Act 1999 335 PTC 177460 PTC 4525 Order dated 9th August 2019 in CS(COMM) 421 2019 642 PTC 361 7 2018 SCC Online Del 8260 879 PTC 335 CS(COMM) 316 2021 “134. Suit for infringement etc. to be instituted before District Court. 1) No suit relating to any right in a registered trade for the infringement of a registered trade a) mark or b) mark or for passing off arising out of the use by c) the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark whether registered or unregistered shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.” A suit for infringement of a registered trademark or for passing off by any person of its goods or services as the goods or services of the plaintiff can be instituted only in a district court or a court superior thereto “having jurisdiction to try the suit”. The issue of whether the court has jurisdiction to try the suit or not would have to be reckoned on the anvil of Section 20 of the CPC. Sub section of Section 134 expands the provinces of the jurisdiction otherwise available under Section 20 of the CPC read with Section 13(1) of the Trademarks Act 1999 by also conferring jurisdiction to try the suit by a court within whose territorial limits the plaintiff resides or carries on business or personally works for gain. CS(COMM) 316 2021 10. Section 20 of the CPC reads as under: time of “20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants where a) there are more than one at commencement of the suit actually and voluntarily resides or carries on business or personally works for gain or b) any of the defendants where there are more than one at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business or personally works for gain as aforesaid acquiesce in such institution or c) Explanation. A corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office at such place.” the cause of action wholly or in part arises. 11. The Supreme Court in Indian Performing Rights Society Ltd. v. Sanjay Dalia9 has clarified that a plaintiff is entitled to institute a suit for infringement of its trademark or for passing off within any court which would be competent to adjudicate on the suit as envisaged by Section 134 of the Trademarks Act 1999 or Section 20 of the CPC. In addition therefore to a court within whose jurisdiction the plaintiff resides or voluntarily works for gain a suit 910 SCC 161 CS(COMM) 316 2021 may also be instituted by virtue of Section 20 CPC in a court within whose jurisdiction the defendant resides or carries on business or personally works for gain or where the cause of action arose wholly or in part. In substance therefore a suit can be instituted where eitherthe plaintiff resides or voluntarily works for gain orthe defendant resides or voluntarily works for gain orthe cause of action arose wholly or in part. 13. That is not however the issue in controversy. 14. The plaintiff has provided its business address in Delhi. That the plaintiff is entitled to institute the present suit in Delhi cannot therefore be gainsaid in view of Section 134(2) of the Trademarks Act 1999. The moot question is whether this court has the territorial jurisdiction to issue any injunctive direction to the defendants who are both located outside India with admittedly no physical Indian presence or injunct the use by them of their “Tata Coin $TATA” mark. India TV3: In my considered opinion it does not. 16.1 Mr. Pravin Anand placed reliance on the judgment of a Single Bench of this Court authored by Hon’ble Mr. Justice Sanjay Kishan Kaulin India TV3. The issue therein was similar. CS(COMM) 316 2021 The plaintiff India TVclaimed to have been using the mark “India TV” continuously and extensively since 1st December 2002. ITV claimed to be aggrieved by “www.indiatvlive.com” domain name of the website of Defendants 1 and 2 in the said case316 2021 jurisdiction over There has to be something more to indicate purposeful direction of activity to the forum state in a substantial way. In Cybersell Inc. case11 limited interactivity of the website restricted to received browser’s name and expression of interest but not signing up for the services provided was not considered to be sufficient for the exercise of jurisdiction. Insofar as the position in this country is concerned 50. there is no long arm’ statute as such which deals with jurisdiction as regards non resident defendants. Thus it would have to be seen whether the defendant s activities have a sufficient connection with the forum state whether the cause of action arises out of the defendant s activities within the forum and whether the exercise of jurisdiction would be reasonable. 51. I am in agreement with the proposition that the mere fact that a website is accessible in a particular place may not itself be sufficient for the Courts of that place to exercise the website. However where the website is not merely ‘passive’ but is interactive permitting the browsers to not only access the contents thereof but also subscribe to the services provided by the owners operators the position would be different. However as noticed in the judgment in CyberSell Inc. Case11even where a website is interactive the level of interactivity would be relevant and limited interactivity may also not be sufficient for a Court to exercise jurisdiction. In Panavision International LP case12it was found that the registration of the plaintiff’s mark as a domain name by the defendant had the effect of injuring the plaintiff in California and In CompuServe case13 again it was found that the defendant had contacted Ohio to sell his computer softwares on the plaintiffs Ohio based systems and sent his goods to Ohio further for their ultimate sale and thus those Courts had In the present case the website ‘indiatvlive.com’ of 52. defendant No. 1 is not wholly of a ‘passive’ character. It has a specific Section for subscription to its services and the the Court had the owners of 11 Case No. 96 17087 D.C. No. CV 96 0089 EHC 12 D.C. Case No CV 96 03284 DDP Appeal No. 97 55467 13 89 F. 3d 1257CS(COMM) 316 2021 options for the countries whose residents can subscribe to the services include India. The services provided by defendant No. 1 can thus be subscribed to and availed of in Delhi i.e. within the jurisdiction of this Court. It may also be noticed that an article entitled ‘Archer Entertainment Joins India Minister for Overseas Affairs in Launching IndiaTvLive.com’ again filed by defendant No. 1 contains a similar statement. This indicates that defendant No. 1 intended to target expatriate Indians as well as Indians within the country. Further the stand taken by defendant No. 1 in its written statement is that defendant No. 1 company has a global presence including in India. Defendant No. 1 also claims to be the first IPTV delivery system of Indian content from India. The website of defendant No. 1 was launched in India as well as in Los Angeles. Thus defendant No. 1 company has sufficient connection with India.” Emphasis supplied) 16.4 The position that emerges from the aforesaid decision is therefore that i) the accessibility of the website of the defendant to persons within the jurisdiction of this Court would not by itself empower this Court to exercise jurisdiction over the defendant ii) something more substantial indicating purposefully directed activity by the defendants to persons located within the territorial jurisdiction of this Court is necessary CS(COMM) 316 2021 Indian Courts do not possess long arm jurisdiction to act against non resident defendants iv) orders which would operate to the prejudice of non resident defendants can therefore be passed by Indian Courts only if a) the defendants’ activities have a sufficient connection with India such activities and b) the cause of action for the plaintiff arises out of c) the exercise of jurisdiction would be reasonable v) the fact that the defendants’ website is interactive and is accessible to persons located within the jurisdiction of this Court is undoubtedly a relevant factor and vi) mere interactivity or accessibility however insufficient the level of interactivity is also relevant. 16.5 Para 52 of the report in India TV3 highlights the circumstances which influenced this Court to hold that it could exercise jurisdiction over the defendants. Firstly the website of the defendants contained a specific section for subscription to its services and India was expressly mentioned as one of the countries whose residents could subscribe to the services provided by the defendants. Secondly the CEO of IBL made a public statement asserting the opportunity provided by the defendants’ platform to reach both inside and outside of India and further acknowledging that within India the defendants would target “a whopping 500 million consumer class”. This statement it was found clearly indicated the intent of the defendants CS(COMM) 316 2021 to target expatriate Indians as well as Indians within India. Thirdly Defendant 1had in its written statement acknowledged that it had a global presence including in India. Fourthly the defendants claimed to be the first IPTV delivery system of Indian content from India. Fifthly the website of the defendants was launched in India as well as Los Angeles. These factors it was found intended the existence of sufficient connection between the defendants and India for courts in India to be empowered to exercise injunctive jurisdiction over the defendants and their activities. 17. Mr. Pravin Anand has also relied on an interlocutory order passed by a Coordinate Single Bench in Juggernaut Books5. As an interlocutory order the precedential value of the said decision is limited nonetheless in the interests of maintaining consistency of approach I have perused the said order. In para 19 of the order this Court has noted the fact that the articles published by the defendants in that case had a connection with India Indian authors Indian movies and Indian actors. Additionally the Court relied on an e mail addressed by the defendants to Mr. William Dalrymple a famous historian as indicating that the defendants were targeting customers based in India. It is in these circumstances that the defendants were prima facie found to be amenable to the injunctive jurisdiction of this 18. Such indicators of a conscious attempt by the defendants to target the Indian market are in my view absent in the present case. CS(COMM) 316 2021 Juggernaut5 does not therefore live up to its name so far as buttressing the case canvassed by Mr. Pravin Anand is concerned. 19. The position that emerges: The resultant legal position is that where the defendants are located outside India this Court can issue directions against such defendants if the defendants are carrying out their infringing activities within the jurisdiction of this Court. Where the activity is physically carried out the question of whether this requirement is or is not met is easily answered. A somewhat more incisive approach is however required where the activity is carried out over the internet as in the present case. A discernable line does exist in such cases between activities which would expose the defendants to the jurisdiction of this Court and those which would not. Mere accessibility of the website of the overseas defendants by persons located within the jurisdiction of this Court is not sufficient to clothe this Court with jurisdiction to act against the defendants. Interactivity of the website is in such a case essential. The extent to which the website would be interactive is also however relevant mere interactivity would not suffice. The decision in India TV3 dovetails in this context the considerations of website interactivity and of “purposeful targeting” of Indian customers by the defendants located abroad. The interactivity should therefore be coupled with an overt intent of the defendants to target customers in India. It would also be relevant to examine whether any collateral evidence of purposeful targeting of the Indian CS(COMM) 316 2021 market by the foreign defendants is or is not available. Where such evidence exists as in the case of India TV3 that would support the inference of amenability of the defendants to the jurisdiction of Indian Courts. At the end of the day the two considerations which would pre eminently decide the issue would be whether the website of the defendants is interactive and whether it discloses an overt intent to target the Indian market. “Intent to target” appears at any rate to be a mandatory governing consideration the satisfaction of which is a sine qua non for this Court to exercise jurisdiction. 20. What remains is for the Court to examine whether the factors on which Mr. Pravin Anand has placed reliance are sufficient to satisfy these requirements so as to enable this Court to grant injunction as sought in the plaint. One may proceed to deal with these aspects seriatim. 21. Mr. Pravin Anand has relied on the following recitals contained in the “White Paper” issued by the defendant: “5.3 Charities Targeted Given that HakunaMatata is a community based token in terms of decision making charities targeted will incorporated a community collective efforts to ensure that a diverse group of charities can and are targeted away from prejudice and unconscious charity exclusions that are part of the human nature. Only in that way can HakunaMatata become a real leader in the crypto currency charity mandate through standing by the motto is will always hold “No Worries” and this applies to the token transparency token dynamics community trust and charitable objectives. To mention a few of the charities already contacted and that are to be contacted below is a list of the nature or charitable focus that will be adopted initially. With a special focus on disaster relief our CS(COMM) 316 2021 Charity Pool is keep to act as a first responder to aid relief groups and alleviate disaster impact. • United Nations World Food Programme • Action Against Hunger • Global Health and Development Fund • GiveWell• India Development and Relief Fund • Charity Water • Wild Animal Initiative • Clean Air Task Force” 22. This paragraph in my view cannot indicate that the defendants are in any manner targeting the Indian market. All it refers to are the programmes included in the charity pool of the defendants. One of the programmes happens to be “India Development and Relief Fund”. The paragraph does not even indicate that the said fund is located in India. The mere fact that the “India Development and Relief Fund” happens to be one of the charities which the defendants intended to contact to aid relief groups and alleviate disaster impact can hardly constitute a basis to indicate targeting of India by the defendants as a customer base for its crypto currency market. 23. Mr. Anand has also pointed out that on the Twitter Page of Defendant 1 various persons from India posted queries regarding the process to be followed to purchase the defendants’ crypto currency. It is not the case of the plaintiff that the defendants responded to these queries and invited customers from India to purchase its product. The website of the defendants is accessible across the world and therefore interested persons across the world could post queries on the website. The mere fact that some queries happen to be posted by persons in CS(COMM) 316 2021 India again cannot indicate any intent on the part of the defendants to target the Indian market. 24. For the same reason the fact that the defendants’ website has 50 visitors from India every dayand that there was considerable internet traffic from India to the website of Defendant 1 can also not constitute a basis to indicate that Defendant 1 was selling its crypto currency in India or was intentionally targeting India. 25. Again the reference to the Telegram Page of Defendant 1 is neither here nor there. The defendants have merely annexed a screenshot of one page from the Telegram account of Defendant 1 which indicates that certain persons who appear by name to be Indian had accessed the webpage. In view of the principles enunciated in India TV3 on which Mr. Anand himself placed reliance mere accessing of the webpage of Defendant 1 cannot constitute a ground for this Court to exercise jurisdiction over the defendants. Besides there is nothing to indicate that these persons had accessed the webpage from India. 26. Mr. Anand has also sought to press into service the “harmful effect” principle. It is contended that as consumers in India could purchase the defendants’ crypto currency online from India and that as a consequence the plaintiff’s market had been affected and diluted the effect of the defendants’ activities were being felt in India thereby clothing this Court with jurisdiction to act in the matter. With respect I am unable to agree. One may take a much simpler example to CS(COMM) 316 2021 examine the correctness of this submission. ‘Raymond’ happens to be a well known brand of apparel in India. An entity X located in the US commences marketing and manufacturing of apparel under the name ‘Raymond’. X has no presence in India. The website of X does not target customers in India. There is nothing to indicate that X had any overt or covert intention to market its product in India. At the same time as X’s products are available online customers in India are in a position to purchase X’s ‘Raymond’ line of apparel while sitting in India. As a result of the activities of X the brand value of the Indian ‘Raymonds’ brand gets diluted. Can it be said in such a situation that an Indian Court could pass injunctive orders against the ‘Raymond’ mark of X located in the US The answer in my view has unequivocally to be in the negative. The mere fact that the defendants’ crypto currency can be purchased by customers located in India and that as a result the plaintiff’s brand value may be diluted even seeing cumulatively cannot therefore in my view justify this Court interfering with the defendants’ activities or with its brand or mark. In fact the very applicability of the “effect” doctrine across sovereign boundaries may itself be a matter for debate I do not however propose to tread that path in the present case. 27. Mr. Anand has also relied on the defendants’ website which contains a QR Code with instructions on how to purchase the defendants’ “TATA Coin $TATA” crypto currency. Unlike the position which is obtained in India TV3 there is no specific reference to India on the website of the defendants as one of the preferred markets from where the defendants’ crypto currency could be CS(COMM) 316 2021 purchased. No conscious targeting of India therefore exists. Apparently the defendants’ crypto currency could be purchased using the QR Code and the methodology indicated on the defendants’ website by a customer located anywhere in the world. This factor therefore too cannot indicate any conscious targeting of the Indian customer base by the defendants. 28. Mr. Pravin Anand took me www.hakunamatata.finance and www.tatabonus.com web pages of Defendants 1 and 2 as well as the Facebook Twitter Instagram YouTube Telegram Reddit and Discord accounts of Defendant 1. It is sought to be submitted that from these pages the intent of Defendant 1 to target customers across the globe and in particular customers located in Delhi is apparent. I am unable to agree. I do not find in the aforesaid pages on the various social media accounts of Defendant 1 any intent covert or overt to target customers in Delhi. If at all they target customers they target customers across the world. There is no “purposeful availment” by the defendants of their activities of the jurisdiction of this Court. 29. Mr. Anand has also sought to submit that as the “whois” details on the defendants’ website are masked India is the most appropriate country to sue Defendant 1. Having itself adopted a stand that the websites www.hakunamatata.finance and www.tatabonus.com over which the defendants’ products are being sold this argument may not be available to the plaintiff at all. Even otherwise the mere fact that the defendants’ identity may not be readily available from its website CS(COMM) 316 2021 cannot empower this Court to exercise jurisdiction over defendants who are admittedly located outside India. 30. The operation of the Trademarks Act and the CPC statutorily extend only to the boundaries of India. In the case of internet infringements no doubt the decision of the Court may at times operate against entities located outside India. That too however would be subject to existence of the necessary connection between the activity of the foreign seated defendants and India. More specifically intent of the defendants to target India must be established. 31. The submissions of Mr. Pravin Anand do not in my considered view make out the existence of the requisite “connection” between the defendants’ activities and India. 32. As a result I am of the prima facie opinion that this Court cannot issue directions as sought to the defendants as they are outside the territorial reach of this Court. 33. As this is a prima facie view let the plaint be registered as a suit and summons to be issued thereon returnable before the Joint Registrar on 21st December 2021. Pleadings be completed before the Joint Registrar and admission and denial of documents carried out in accordance with the provisions of the CPC read with the Delhi High Court Rules 2018 and the Commercial Courts Act 2015. CS(COMM) 316 2021 34. The prayer for interim relief is declined. IA 8000 2021 is C. HARI SHANKAR J. OCTOBER 26 2021 CS(COMM) 316 2021

CIRP cannot be challenged other than the Creditors of the company :NCLAT

Financial creditors of a corporate debtor would not come under the definition of aggrieved person so as to enable them to challenge an application of admission of Corporate Insolvency Resolution Process. The judgement passed by the NCLAT New Delhi (principle bench), in its decision in   Srei Multiple Asset Investment Trust vs. IDBI Bank Ltd. & Ors. (Company Appeal (AT) (Insolvency) No. 666 of 2019)   by Hon’ble Shri  Justice S.J. Mukhopadhaya The facts of the case were such that – Financial Creditor/IDBI Bank Limited had filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016  for initiation of the ‘Corporate Insolvency Resolution Process against ‘M/s. Odisha Slurry Pipeline Infrastructure Ltd./Corporate Debtor alleging a default in paying the financial debt. M/s. SREI Infrastructure Finance Limited documented a mediation appeal to go against the supplication. Nonetheless, it was not engaged by the Adjudicating Authority (NCLT). Ld. counsel for the Appellant fought that the case of the Financial Creditor was considered by the ‘Goal Professional’ in the ‘CIRP’ which was started against ‘Essar Steel India Limited’ and was forthcoming before the Adjudicating Authority. In this way, as per learned direction for the Appellant, for a similar case sum, the Financial Creditor can’t record an application under Section 7 against Corporate Debtor. Adjudicating Authority dismissed such accommodation without any record on the side of such request as was taken by ‘M/s. SREI Infrastructure Finance Limited’ (not the current Appellant). The Adjudicating Authority conceded the application under Section 7 by reviled request dated fourteenth May 2019 which is under challenge. Appellant has accepted a comparative supplication as was taken by ‘M/s. SREI Infrastructure Finance Limited’ before the Adjudicating Authority. In any case, as we find that ‘IDBI Bank Limited’ had likewise conceded credit to the Corporate Debtor, we hold that the application under Section 7 recorded by the ‘IDBI Bank Limited’ has been properly conceded. Comparable supplication was taken by the ‘Corporate Debtor’ that the ‘IDBI Bank’ had recorded its case before the ‘Goal Professional’ of ‘Essar Steel India Limited. Notwithstanding, from the record and the judgment passed in ‘Essar Steel India Limited’, we track down that no such case was made by ‘IDBI Bank Limited’ in regard to the case sum as demonstrated against Corporate Debtor. The application under Section 7 has likewise been encased by the Appellant, wherein the subtleties of the advance taken by the Corporate Debtor have appeared. The Adjudicating Authority has additionally seen that the advance was taken by the ‘Corporate Debtor was not discounted and the ‘Corporate Debtor’ defaulted to pay the obligation, which isn’t in question.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 6619 Arising out of Order dated 14th May 2019 passed by the Adjudicating AuthorityCuttack Bench Cuttack in TP No. 41 CTB 2019 CPNo. 352 KB 2018) IN THE MATTER OF: Srei Multiple Asset Investment Trust IDBI Bank Ltd. & Ors. ...Appellant ...Respondents For Appellant: Mr. Abhijeet Sinha Mr. Arijit Mazumdar Mr. Aditya Sukla Mr. Shambo Nandy Mr. Saikat Sarkar Mr. Devesh Ajmani and Ms. Akanksha Kaushik Advocates. For Respondents: Mr. Arun Kathpalia Senior Advocate with Ms. Misha Mr. Siddhant Kant Mr. Eklavya Dwivedi Ms. Bani Brar and Ms. Jasveen Kaur Advocates. J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA J. ‘IDBI Bank Limited’filed an application under Section 7 of the Insolvency and Bankruptcy Code 2016for initiation of the ‘Corporate Insolvency Resolution Process’ against ‘M s. Odisha Slurry Pipeline Infrastructure Limited’ alleging default in paying financial debt of Rs.471 59 37 171 Rupees Four Hundred Seventy One Crore Fifty Nine Lakh Thirty Seven 2 Thousand One Hundred and Seventy One only) which has been ‘M s. SREI Infrastructure Finance Limited’ filed an intervention petition to oppose the prayer. However it was not entertained by the Adjudicating Authority Cuttack Bench Cuttack. At that stage ‘M s. SREI Infrastructure Finance Limited’ moved before this Appellate Tribunal in Appeal No. 126 2019 wherein this Appellate Tribunal held that ‘M s. SREI Infrastructure Finance Limited’ has no right to intervene at the stage of admission. However allowed ‘M s. SREI Infrastructure Finance Limited’ to file written submissions not more than three pages before the Adjudicating Authority with direction to the Adjudicating Authority to consider the same. Before the Adjudicating Authority ‘M s. SREI Infrastructure Finance Limited’ opposed the application only on the ground that they also gave loan of Rs.136.50 Crore to the ‘Corporate Debtor’ on the basis of the Business Transfer Agreement. However such submission was not accepted by the Adjudicating Authority. Learned counsel for the Appellant contended that the claim of the ‘IDBI Bank Limited’ was considered by the ‘Resolution Professional’ in the ‘Corporate Insolvency Resolution Process’ which was initiated against ‘Essar Steel India Limited’ and was pending before the Adjudicating Company Appeal(Insolvency) No. 6619 3 Authority. Therefore according to learned counsel for the Appellant for the same claim amount the ‘IDBI Bank Limited’ cannot file application under Section 7 against ‘M s. Odisha Slurry Pipeline Infrastructure Limited’ (Insolvency) No. 6619 The Appellant has enclosed a copy of ‘Business Transfer Agreement’ between ‘Essar Steel India Limited’ and ‘Odisha Slurry Pipeline Infrastructure Limited’ dated 27th February 2015. From the said ‘Business Transfer Agreement’ it is clear that ‘Odisha Slurry Pipeline Infrastructure Limited’ was treated as integral part for functioning of ‘Essar Steel India Limited’. However the Agreement shows that the two entities i.e. ‘Essar Steel India Limited’ and ‘Odisha Slurry Pipeline Infrastructure Limited’ remained separate entities under the Companies Act therefore separate application under Section 7 was maintainable against ‘Odisha Slurry Pipeline Infrastructure Limited’ has been shown. The Adjudicating Authority has also noticed that the loan was taken by the ‘Corporate Debtor’ was not refunded and the ‘Corporate Debtor’ defaulted to pay the debt which is not in dispute. 11. The ‘Loan Agreement’ dated 24th September 2015 which was reached between ‘Odisha Slurry Pipeline Infrastructure Limited’ ‘Corporate Debtor’) and ‘IDBI Bank Limited’ also show that a sum of Rs. 400 Crores was borrowed by the ‘Corporate Debtor’ from ‘Financial Company Appeal(Insolvency) No. 6619 5 Creditor’. The terms of repayment have been shown therein. Admittedly the ‘Corporate Debtor’ has failed to pay the debt. 12. This apart curiously the Promoters Directors of the ‘Odisha Slurry Pipeline Infrastructure Limited’ who are aggrieved parties have not preferred any appeal under Section 61 of the ‘I&B Code’. One of the ‘Financial Creditors’ namely— ‘SREI Multiple Asset Investment Trust’ has challenged the order of admission under Section 7 who cannot be held to be an aggrieved person. 13. As no case has been made out by the Appellant the appeal is dismissed. No costs. Chairperson NEW DELHI 25th September 2019 Company Appeal(Insolvency) No. 6619 Justice A.I.S. Cheema) Member(Technical)

No Court or Tribunal may intervene on behalf of others who are oblivious to their rights: Jharkhand High Court

It has been repeatedly held that if government employees sleep on their rights and are not alert, the Court cannot come to their aid/rescue and offer relief only because they were unaware of the Rules. These rulings add a new layer to the situation, namely that correcting the date of birth at the tail end will be at the expense of a significant number of employees; hence, any change at the tail end must be discouraged by the Court. The High of Court Jharkhand in the case of Lal Bahadur vs. Jamshedpur Engineering & Machine Manufacture Company Ltd. [W.P. (L) No. 374 of 2014] by Single Bench consisting of Hon’ble Shri Justice Dr S.N. Pathak. The facts of the case are petitioner was appointed as Guard under respondent-Management. While discharging his duties, he received a letter from the respondent management whereby it was informed to the petitioner that on completion of 60 years of age, he is going to superannuate from service treating his date of birth as 01.10.1944. It is the case of the petitioner that his date of birth is 28.04.1955. Hence, the petitioner was compelled to raise an industrial dispute. Learned counsel appearing for the petitioner vociferously argues that the Award passed by the learned Labour Court, Jamshedpur is grossly illegal and arbitrary and suffers from error apparent from the face of the record. The Award is perverse in law as well as in fact since the learned Labour Court travelled beyond the terms of reference. Learned counsel further argues that from the contents of the various documents which were exhibited before the learned Labour Court it is manifested that the concerned workman is entitled to reinstatement in services. Learned labour court has overlooked the fact “that it is a creation of statute and it cannot be allowed to travel beyond the terms of reference.” Learned counsel appearing for the respondent vehemently opposes the contention of the learned counsel for the petitioner and submits that as per the prevalent practice and rules, the employment record of the petitioner was also prepared at the time of his appointment and in the said record, the date of birth of the petitioner was recorded as 01.10.1944 and as such, the management has superannuated him on 01.10.2004, on attaining the age of superannuation i.e., 60 years. While relying on the apex court judgment State of M.P. v. Premlal Shrivas, it was held that “Time and again this Court has expressed the view that if a government servant requests the correction of the recorded date of birth after a lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is erroneous. “

1 W.P.No. 21920 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 21920 Satya Prakash aged about 48 years Son of Late Abhay Kumar Residing at C o Jai Prakash Kali Shankar Street Hindpiri Near Marwari College Ranchi P.O. & P.S. Hindpiri District Ranchi … Petitioner Versus State of Jharkhand Chief Secretary Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand Principal Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand Joint Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand 5. Divisional Commissioner North Chotanagpur Division Hazaribagh P.O P.S. Hazaribagh Dist. Hazaribagh Jharkhand 6. Deputy Commissioner Gumla P.O. P.S. & District Gumla Jharkhand … Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the Respondent State Mr. Diwakar Upadhyay Advocate Mrs. Laxmi Murmu S.C. V Heard Mr. Diwakar Upadhyay learned counsel for the petitioner and Mrs. Laxmi Murmu learned counsel for the respondent State This writ 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 on merit The petitioner has preferred this writ petition for quashing the notification dated 01.07.2020 whereby the petitioner has been put under suspension under Rule 9 of the Jharkhand Government Servants Classification Control and Appeal) Rules 2016 2 W.P.No. 21920 The petitioner was posted as Circle Officer Chainpur Gumla on 31.07.2017. A notification dated 01.07.2020 issued by the Joint Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand was served to the petitioner whereby the petitioner has been put under suspension under Rule 9 of the Rules 2016 alleging therein that on the recommendation of the Deputy Commissioner Gumla vide his letter dated 06.06.2020 on the ground of non residing at the Circle Headquarter Chainpur and on a charge of unauthorisedly checking and collecting fine from vehicles outside his jurisdictional area a recommendation has been made to initiate a departmental proceeding against the petitioner. Aggrieved with this the petitioner has preferred the writ petition. Mr. Diwakar Upadhyay learned counsel for the petitioner submits that without following the principles of natural justice the suspension order has been passed. He further submits that due to that the petitioner has been put irreparable loss as his prestige is downgraded in the society. He also submits that more than 8 months period has lapsed and in spite of that the petitioner is still under suspension and no revocation order has been passed. He further submits that the case of the petitioner is covered in light of the judgment rendered by the Hon ble Supreme Court in the case of Ajay Kumar Choudhary v. Union of India through its Secretary Others reported in7 SCC 291 Paragraphs 8 9 and 14 of the said judgment are quoted herein “8. The learned Senior Counsel for the appellant however has rightly relied on a series of judgments of this Court including O.P. Gupta v. Union of India where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably 3 W.P.No. 21920 long period that therefore an order of suspension should not be lightly passed 9. Our attention has also been drawn to K. Sukhendar Reddy v. State of A.P. which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not been proceeded against 14. More recently the European Convention on Human Rights in Article 6(1) promises that “6.in the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a and in its second sub article that:“ 6.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to Per contra Mrs. Laxmi Murmu learned counsel for the respondent State submits that there is serious allegation against the petitioner and that is why the petitioner has been put under suspension. She further submits that now the departmental proceeding has already been initiated and that will be completed within a time frame and the petitioner may cooperate in the department proceeding. Having heard learned counsel appearing on behalf of the parties the Court finds that admittedly the petitioner was suspended vide notification dated 01.07.2020. It is also an admitted fact that the enquiry has not been completed as yet. In view of the resolution of the Personnel and Administrative Department dated 26.12.2012 the enquiry needs to be completed within 105 days. Rule 9(6)(C) has not been exercised by the authority for extending the suspension order with regard to the petitioner A reference in this regard may be made in case of State of T.N. v Promod Kumar reported in17 SCC 677. Paragraph nos.24 25 4 W.P.No. 21920 26 and 27 of the said judgment are quoted herein below: “24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However the point is whether the continued suspension of the first respondent for a prolonged period is 25. The first respondent has been under suspension for more than six years. While releasing the first respondent on bail liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence Admittedly no complaint is made by CBI in that regard. Even now the appellant has no case that there is any specific instance of any attempt by the first respondent to tamper with 26. In the minutes of the Review Committee meeting held on 27 6 2016 it was mentioned that the first respondent is capable of exerting pressure and influencing witnesses and there is every likelihood of the first respondent misusing office if he is reinstated as Inspector General of Police. Only on the basis of the minutes of the Review Committee meeting the Principal Secretary HomeDepartment ordered extension of the period of suspension for a further period of 180 days beyond 9 7 2016 vide order dated 6 7 2016. 27. This Court in Ajay Kumar Choudhary v. Union of India has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration On the basis of the material on record we are convinced that no useful purpose would be served by continuing the first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the appellant State has the liberty to appoint the first respondent in a non sensitive post.” In view of the well settled provision of law it is well settled that the suspension must necessarily be for a short duration. In this case Rule 9(6 C) has not been invoked for extending the period of suspension or revocation. However eight weeks’ further time is allowed to the respondent 5 W.P.No. 21920 State to conclude the departmental proceeding. If the departmental proceeding is not concluded within the aforesaid period the order of suspension shall automatically be revoked. 10. With the aforesaid observation and direction the writ petition stands Ajay (Sanjay Kumar Dwivedi J

Retrospective Application of 10% EWS Quota is against the Constitutional Mandate: Jharkhand High Court

“At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India.” The Jharkhand High Court presided over by J.S.K. Dwivedi laid down this ratio in the case of Ranjeet Kumar Shah & Anr. Vs. State of Jharkhand & Ors., [W.P. (S) No. 53 of 2020]. The brief facts of this case are that the Petitioner approached the Court for quashing an advertisement of Jharkhand Public Service Commission 2019, for the appointment of post of Assistant Civil Engineer which provided retrospective applicability of 10% reservation to the EWS category. The advertisement merged vacancies for the unreserved category and conduct a single selection process for earlier advertisements of the year 2013 and 2015 along with vacancies notified for the year 2019. It was the case of the Petitioners that the Central Government published an official memorandum dated 31.01.2019, which introduced 10% reservation of EWS category in Civil posts and Government services. The State of Jharkhand similarly passed a resolution dated 15.01.2019, making provisions for EWS reservation. Amendments were also made to the State rules of 2001 by increasing the percentage of reservation ceiling to 60%. The Petitioner aggrieved by this advertisement submitted that as per the GOI notification, it can be clarified that the effect of its applicability will be post facto and not retrospective and therefore, the JPSC had superseded its earlier advertisements of 2013 and 2015 as there was no EWS reservation applicable at that point.   The Petitioners submitted that the advertisement violated their right on earlier vacancies which were later merged with the 10% EWS reservation by giving it a retrospective application. Further, the decision of the government to enhance the reservation limit from 50% to 60% by giving retrospective applicability to the 103rd Amendment Act, 2019 is against the Constitutional Mandate. The Court analyzed the submissions and was of the opinion that “Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is a fountain of all the Statutes. At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively is against the constitutional scheme.”

1 W.P.No. 520 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 520 Ranjeet Kumar Sah aged about 31 years son of Sri Vishwanath Sah resident of Village & P.O. Dhamni Bazar P.S. Sundar Pahari District Godda Jharkhand Uttam Kumar Upadhyay aged about 30 years son of Sushil Kumar Upadhyay resident of Village & P.O. Barwadih P.S. Barwadih … Petitioners District Latehar Versus The State of Jharkhand The Secretary Road Construction Department Government of Jharkhand Project Building Dhurwa P.O. & P.S. Dhurwa District The Secretary Water Resources Department Government of Jharkhand Project Building Dhurwa P.O. & P.S. Dhurwa District The Secretary Drinking Water and Sanitation Department Government of Jharkhand Project Building Dhurwa P.O. & P.S Dhurwa District Ranchi The Additional Chief Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand Project Building Dhurwa P.O. & P.S. Dhurwa District Ranchi The Principal Secretary cum Law Advisor Department of Law Government of Jharkhand Project Building Dhurwa P.O. & P.S Dhurwa District Ranchi The Secretary Jharkhand Public Service Commission Circular Road … Respondents Ranchi P.O. & P.S. Lalpur District Ranchi HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the Respondent State : Mr. Rajiv Ranjan Advocate General : Mr. Saurabh Shekhar Advocate Mr. Mohan Kumar Dubey A.C. to A.G For the Respondent JPSC : Mr. Sanjay Piprawall Advocate C.A.V. on 14.12.2020 Pronounced on 21.01.2021 Heard Mr. Saurabh Shekhar learned counsel for the petitioners Mr. Rajiv Ranjan learned Advocate General assisted by Mr. Mohan Kumar Dubey learned counsels for the respondent State and Mr. Sanjay Piprawall learned counsel for the respondent Jharkhand Public Service Commission This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising 2 W.P.No. 520 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 on merit The petitioners have preferred this writ petition for quashing the Advertisement No.05 2019 contained in Annexure 4 of the writ petition so far as it relates to the appointments to be made on the post of Assistant Engineerlimited to the extent of retrospective applicability of 10 reservation for Economically Weaker Sectionreservation. The prayer is also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively. The further prayer is made for conducting selection process on the vacancies arrived in the year 2013 2015 & 2019 separately and independently. The fact leading for filing of this writ petition is that the department for the first time earmarked vacancies to be filled up for the post of Assistant Engineer in the year 2013 and pursuant to this the advertisement was published numbered as Advertisement No.015 for the selection process by respondent no.7. The petitioners applied to participate in the selection process for their direct recruitment on the post of Assistant Engineer. The number of unreserved posts advertised was 105 vacancies. There was no EWS reservation of 10% quota applicable at that point of time. The cut off date for age eligibility was specified to be 01.08.2013 and it was also specified that the age of eligibility to participate will be 21 to 35. The selection process was started but not concluded in conducting selection tests. In the very same Advertisement No. 015 the departments earmarked vacancies to be filled up for the post of Assistant Engineerin the year 2015 was published. The petitioners 3 W.P.No. 520 eligible on all counts applied to participate in the selection process for their direct recruitment on the post of Assistant Engineer. The number of unreserved posts advertised was 93 vacanciesNo. 520 Mr. Saurabh Shekhar learned counsel for the petitioners submitted that the petitioners are not EWS candidates and therefore the applicability of reservation quota on this count is adversely affecting their right on earlier vacancies on which the provisions of EWS cannot be made applicable retrospectively. He further submitted that due to merger of vacancies the seats which were available in the year 2013 and 2015 have been brought under the cover of current advertisement of the year 2019 wherein 10% reservation for EWS have been made applicable retrospectively for all the earlier vacancies that were part of earlier selection process. He further submitted that 52 seats have been carved out from unreserved quota includes merged vacancies of earlier selection process of the year 2013 and 2015 in the current advertisement of 2019 He also submitted that 52 seats have been earmarked for EWS candidates separately but these seats have been carved out from the unreserved quota as the reservation point has been increased by 10% thereby enhancing the upper limit of reservation 60% but this has to be done on post facto vacancies. He further submitted that the petitioners will suffer as the vacancies in unreserved quota have been reduced by applicability of EWS in the vacancies of earlier selection process. He further made out a case that ineligible candidates of earlier selection process on the point of age come eligible in the current selection process of the year 2019 thereby adversely affecting the right of the petitioners. He further submitted that there is an amendment in the Constitution of India i.e. 103 rd Amendment Act 2019 whereby in Article 15 of the Constitution of India Clause 6 has been inserted after Clause 5 and in Article 16 of the Constitution of India Clause 6 has been inserted after Clause 5. He also submitted that this amendment was made effective from the date of the notification in the 5 W.P.No. 520 official gazette. He further submitted that the Central Government notified the 103rd Amendment Act 2019 in the official gazette on 14.01.2019. The amendment was made effective from 14.01.2019. He referred to Clause 6.2 and Clause 11 of the resolution of the Government of Jharkhand dated 15.02.2019 and submitted that it was made effective by the resolution w.e.f. 15.01.2019 whereas in the earlier vacancies this has been made retrospectively enhancing the reservation and in view of various judgments rendered by the Hon ble Supreme Court reservation was required to be restricted to 50% of the vacancy. On this ground he submitted that retrospective applicability of 103rd Amendment Act 2019 by the respondents is against the mandate of the Constitution of India. Per contra Mr. Rajiv Ranjan learned Advocate General appearing for the respondent State submitted that in view of Article 16(4)(B) of the Constitution of India it is well within the domain of the State Government to fill up the vacancies in any succeeding year or years. He further submitted that the said applicability of 10% reservation for EWS is being implemented by the State of Jharkhand in view of the State resolution dated 15.02.2019 which has been annexed as Annexure 1 of the counter affidavit. He also submitted that the resolution dated 15.02.2019 is not under challenge in this writ petition. He further submitted that in terms of the said statutory provisions Advertisement No. 05 of 2019 has been published by the Jharkhand Public Service Commission after 15.01.2019 and thus 10% reservation for EWS with respect to the appointment to be made on the post of Assistant Engineerhas been rightly made. He also submitted that the resolution dated 15.02.2019 clearly states that it will be effective from 15.01.2019 in direct recruitment. The State has got the right not to fill up the vacancy of a particular year. He further submitted 6 W.P.No. 520 that the vacancies which are not filled up in any advertisement that will be filled up in the next advertisement. He further submitted that the advertisement of 2019 is in accordance with the rules. He further submitted that it is well settled proposition of law that there is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date. He relied upon the judgment rendered by the Hon ble Supreme Court in the case of Deepak Agarwal & another v State of Uttar Pradesh & Others reported in 6 SCC 725 paragraphs 26 27 and 28 of the said judgment are quoted herein below “26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules which implies the “rule in force” on the date the consideration took place There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless of course the applicable rule as in Y.V Rangaiah case lays down any particular time frame within which the selection process is to be completed. In the present case consideration for promotion took place after the amendment came into operation. Thus it cannot be accepted that any accrued or vested right of the appellants has been taken away by the 27. The judgments cited by the learned counsel for the appellants namely B.L. Gupta v. MCD P. Ganeshwar Rao v. State of A.P. and N.T.Devin Katti v. Karnataka Public Service Commission are reiterations of a principle laid down in Y.V. Rangaiah case. All these judgments have been considered by this Court in Rajasthan Public Service Commission v. Chanan Ram. In our opinion the observations made by this Court in SCC paras 14 and 15 of the judgment are a complete answer to the submissions made by Dr Rajeev Dhavan. In that case this Court was considering the abolition of the post of Assistant Directorwhich was substituted by the post of Marketing Officer. Thus the post of Assistant Directorwas no longer eligible for promotion as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was therefore held that the post had to be filled under the prevailing rules and not the old rules 28. In our opinion the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu. In the aforesaid case this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Y.V. Rangaiah case would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government 7 W.P.No. 520 takes a conscious decision and amends the rules the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.” Learned Advocate General appearing for the respondent State further relied upon the judgment rendered by the Hon ble Supreme Court in the case of Union of India & Ors. v. Krishna Kumar & Ors. reported in 4 SCC 319 paragraphs 10 11 and 12 of the said judgment are quoted herein below “10. In considering the rival submissions it must at the outset be noted that it is well settled that there is no vested right to promotion but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. J Sreenivasa Rao has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence it has been held in H.S. Grewal v. Union of India that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two Judge Bench of this Court held thus:No. 520 has been taken away by the amendment 27. The judgments cited by the learned counsel for the appellants namely B.L. Gupta v. MCD P. Ganeshwar Rao v State of A.P. and N.T. Devin Katti v. Karnataka Public Service Commission are reiterations of a principle laid down in Y.V 12. Recently in State of Tripura v. Nikhil Ranjan Chakraborty another two Judge Bench of this Court held thus:4 SCC 319. He also submitted that only participation in selection process is giving no right to the candidates for appointment if they responding to the advertisement. He further relied upon the judgment rendered by the Hon ble Supreme Court in the case of Mohd. Rashid v Director Local Bodies New Secretariat & Ors. reported in2 SCC 582 paragraph 13 of the said judgment is quoted herein below “13. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12 9 2013. Even after completion of the selection process the candidates even on 9 W.P.No. 520 the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:No. 520 Test has already been published on 14.08.2020 and the date for Mains examination has already been published By the way of reply Mr. Saurabh Shekhar learned counsel for the petitioners submitted that there is no question of after thought of filing of the writ petition. The petitioners have already applied in the earlier advertisements. He further submitted that once the advertisement is there the State has got no prerogative to cancel the advertisement. He also submitted that ceiling limit of 50% in view of Article 16(4)(B) of the Constitution of India has not been followed. He further submitted that by way of merging the advertisement which has been admitted in paragraph 9 of the counter affidavit of the respondent State the retrospective effect of 103rd Amendment has been given which is against the mandate of the Constitution of India. He further submitted that Article 15 of the Constitution of India secures the fundamental right of the petitioners. He also submitted that Article 16 can be raised even after selection process He further submitted that this Court may mould the rule under Article 226 of the Constitution of India. In light of the above facts and considering the submission of the learned counsel appearing for the parties the Court has gone through the materials available on record. The only question requires to be answered by the Court as to whether EWS reservation can be given effect retrospectively or not. The fact which is not in dispute is that the State of Jharkhand has come out with a resolution on 15.02.2019 for providing reservation to the EWS which was made effective from 15.01.2019. Thus it is clear that the reservation was made effective from 15.01.2019. The Court has gone through the said resolution contained in Annexure 1 of the counter affidavit of the respondent State. Clause 11 of the said document 11 W.P.No. 520 clearly stipulates that the said reservation will be made effective w.e.f 15.01.2019. The respondents have issued resolution on 15.02.2019 and the advertisement was published after 15.01.2019. 103rd Amendment Act 2019 is quoted herein below: “BE it enacted by Parliament in the Sixty ninth Year of the Republic of India as follows:— 1.This Act may be called the ConstitutionAct 2019. It shall come into force on such date as the Central Government may by notification in the Official Gazette appoint. 2. In article 15 of the Constitution after clausethe following clause shall be inserted namely:— ‘(6) Nothing in this article or sub clauseof clauseof article 19 or clauseof article 29 shall prevent the State from making — any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clausesandand any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clausesandin so far as such special provisions relate to their admission to educational institutions including private educational institutions whether aided or unaided by the State other than the minority educational institutions referred to in clauseof article 30 which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16 "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’. 3. In article 16 of the Constitution after clausethe following clause shall be inserted namely:— "(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clausein addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category." The said amendment was to be made effective by the notification in the official gazette vide notification dated 14.01.2019 which reads as “NOTIFICATION New Delhi the 14th January 2019 S.O. 292(E). In exercise of the powers conferred by sub section 2) of section 1 of the ConstitutionAct 2019. the Central Government hereby appoints the 14th January 2019 as the date on which the provisions of the said Act shall come into force.” 12 W.P.No. 520 Thus it is clear that the said amendment was made effective w.e.f 14.01.2019. The Government of Jharkhand has also made resolution dated 15.02.2019 which will be made effective w.e.f. 15.01.2019. Thus in any view of the matter the said 10% reservation to EWS was required to be made effective w.e.f. 15.01.2019. 10. Before judicially scrutinizing the retrospective effect of the said applicability it would be proper to make reference of the judgment rendered by the Hon ble Supreme Court in the case of M. R. Balaji & Ors v. The State of Mysore & Ors. reported in AIR 1963 SC 649 the Constitution Bench of the Hon ble Supreme Court has been pleased to reject the argument that in the absence of a limitation contained in Article 15(4) no limitation can be prescribed by the Court on the extent of reservation. It has also been observed that a provision under Article 15(4 being a special provision must be within reasonable limits. The Hon ble Supreme Court has been pleased to take strict view in the case of State of Kerala & anr. v. N. M. Thomas & Ors. reported in2 SCC 310 wherein it has been held that as to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases and decided cases of this Court have no doubt laid down that the percentage of reserveration should not exceed 50%. The said issue came up for consideration before the Constitution Bench of the Hon ble Supreme Court in the case of Indra Sawhney v. Union of India & Ors. reported in 1992 SuppSCC 217 wherein the Constitution Bench of the Hon ble Supreme Court by its majority view has been pleased to approve the view taken in the case of M. R. Balajiand disapproved the 13 W.P.No. 520 view taken by the Hon ble Supreme Court in the case of N. M. Thomas supra) by providing proposition that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favour of Scheduled Caste and Scheduled Tribe category candidates. The extraordinary situation has been observed in paragraph 808 of the said judgment which is quoted herein below: “808. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clauseof Article 16 is but a means of achieving the very same objective. Clauseis a special provision though not an exception to Clauseconceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in Clause2 SCC 745 wherein it has been held that roster system is necessary to be followed in the matter of public employment so that extent of reservation may not exceed to 50% limit taking into account the principle laid down to maintain equality under Article 16 of the Constitution of India on which balance is maintained. 11. The Government of India came out with an amendment by way of 85th Amendment Act incorporating the provision of accumulated reservation in promotion by giving the benefit of seniority. Consequently Article 16(4A has been incorporated in the Constitution of India. The vires of the said constitutional amendment was challenged before the Hon ble Supreme 14 W.P.No. 520 Court in the case of M. Nagaraj & Ors. v. Union of India & Ors. reported in8 SCC 212 in which the Hon ble Supreme Court has taken into consideration the law laid down in the case Indra Sawhney supra) and held that the ceiling limit of 50% the concept of creamy layer and the compelling reasons namely backwardness inadequacy of representation and overall administrative efficiency are all consequential requirements without which the structure of equality of opportunity in Article 16 would collpase 12. The cases of M. Nagaraj and R. K. Sabharwal were again considered by the Hon ble Supreme Court in the case of B.K. Pavitra Ors. v. Union of India & Ors. reported in 4 SCC 620 and certain observations made in M. Nagaraj case has been taken into consideration in paragraph 22 of the said judgment and in paragraph 25 of the said judgment the case of U.P. Power Corpn. Ltd. was summarised Paragraphs 22 and 25 of the said judgment are quoted herein below “22. It may also be worthwhile to note further observations of this Court in the said judgment:speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant 102. … Therefore in every case where the State decides to provide for reservation there must exist two circumstances namely “backwardness” and “inadequacy of representation” As stated above equity justice and efficiency are variable factors. These factors are context specific. There is no fixed yardstick to identify and measure these three factors it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by 15 W.P.No. 520 the impugned amendments. If the State concerned fails to identify and measure backwardness inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid 104. … As stated above be it reservation or evaluation excessiveness in either would result in violation of the constitutional mandate. This exercise however will depend on the facts of each case. In our view the field of exercise of the amending power is retained by the impugned amendments as the impugned amendments have introduced merely enabling provisions because as stated above merit efficiency backwardness and inadequacy cannot be identified and measured in vacuum. Moreover Article 16(4 A) and Article 16(4 B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States the provision of reservation cannot be faulted. Articles 16(4 A) and 16(4 B) are classifications within the principle of equality under Article 16(4 106. … According to the Constitutional Law of India by H.M Seervai 4th Edn. p. 546 equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred would be corrected by the courts. … 107. … If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above the concepts of efficiency backwardness inadequacy of representation are required to be identified and measured. … 108. … Moreover Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice. Therefore where the State finds compelling interests of backwardness and inadequacy it may relax the qualifying marks for SCs STs. These compelling interests however have to be identified by weighty and comparable 117. … Therefore in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution 16 W.P.No. 520 118. The constitutional principle of equality is inherent in the rule of law. However its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally that is even handedly free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified Justification needs each case to be decided on case to case 120. At this stage one aspect needs to be mentioned. Social justice is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflict between rights needs and means. These three criteria can be put under two concepts of equality namely “formal equality” and “proportional equality”. Formal equality means that law treats everyone equal. Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In Indra Sawhney all the Judges except Pandian J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney this Court has therefore accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above we are bound by the decision in Indra Sawhney. The question as to the “determinant” of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra Sawhney has evolved numerical benchmarks like ceiling limit of 50% based on post specific roster coupled with the concept of replacement to provide immunity against the charge of 122. We reiterate that the ceiling limit of 50% the concept of creamy layer and the compelling reasons namely backwardness inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.” “25. Reference was then made to the Constitution amendment enabling reservation in promotions and consequential seniority which was upheld in M. Nagaraj. The said judgment was summarised as follows:No. 520 Vesting of the power by an enabling provision may be constitutionally valid and yet “exercise of power” by the State in a given case may be arbitrary particularly if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14 Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated Further roster has to be post specific and not vacancy based The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clauseof Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion Clauseof Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4 A). Therefore clause 4 A) will be governed by the two compelling reasons —“backwardness” and “inadequacy of representation” as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot be enforced If the ceiling limit on the carry over of unfilled vacancies is removed the other alternative time factor comes in and in that event the time scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time scale is not kept then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore in each case the appropriate Government will now have to introduce the duration depending upon the fact situation If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above be it reservation or evaluation excessiveness in either would result in violation of the constitutional mandate. This exercise however will depend on the facts of each case The concepts of efficiency backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment Article 16(4) therefore creates a field which enables a State to provide for reservation provided there exists 18 W.P.No. 520 backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.” In view of the above judgments it is clear that the extent of reservation is made up to 50%. However extraordinary situation may be there. The Court is not examining this aspect of the matter in this writ petition as to whether the reservation upto 60% is valid or not. The only question requires to be answered by the Court as to whether EWS reservation can be given effect retrospectively or not. Admittedly 103rd Amendment Act 2019 was made effective w.e.f. 14.01.2019. The Government of Jharkhand by way of resolution dated 15.02.2019 has also adopted the said amendment. In view of Clause 11 of the resolution dated 15.02.2019 it is clear that the reservation will be effective w.e.f. 15.01.2019 in subsequent advertisement. Thus that reservation cannot be allowed to be made effective with retrospective effect which is against the mandate of the Constitution of India. The Constitution of India is fountain of all the Statutes. At the time of advertisement of 2013 and 2015 10% reservation for EWS was not there and by way of clubbing the vacancies 10% reservation for EWS has been provided in the vacancy of 2013 and 2015 which is against the mandate of the Constitution of India. The merger of earlier advertisements which has been made effective retrospectively is against the constitutional 14. The judgments relied by the learned Advocate General are in the facts and circumstances of those cases and most of the cases relied by the learned Advocate General are on the point of promotion. It is true that merely by way of participating in the examination process that does not provide right to aspirants i.e. one aspect of the matter. However in the 19 W.P.No. 520 present case in the garb of resolution dated 15.02.2019 reservation for EWS has been made effective along with the vacancy of the year 2013 and 2015 which cannot be allowed It is well settled proposition of law that the judgment needs to be read in the facts and circumstances of the case. A reference in this regard may be made to the judgment rendered by the Hon ble Supreme Court in the case of State of Orissa Versus Sudhanshu Sekhar Misra and Others reported in AIR 1968 SC 647 in which the Hon ble Supreme Court has considered Earl of Halsbury which is at page 651 of the said judgment quoted herein below for ready reference: “On this topic this is what Earl of Halsbury. LC said in Quinn v Leathem 1901 AC 495. “Now before discussing the case of Allen v Flood AC 1 and what was decided therein there are two observations of a general character which I wish to make and one is to repeat what I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code whereas every lawyer must acknowledge that the law is not always logical at all. “ 16. By the order of this Court dated 14.01.2020 it was ordered that final appointment will be subject to the result of the writ petition. Thus the contention of the learned counsel for the respondent JPSC that the writ petition is not maintainable is not accepted by this Court In view of the above discussions the writ petition succeeds. The impugned Advertisement No. 019 contained in Annexure 4 of the writ petition is set aside and this Court declares that the retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequenly the State Government is directed to modify the Advertisement no. 019 contained in Annexure 4 of the 20 W.P.No. 520 writ petition to the extent that 10% quota for EWS shall not be made effective retrospectively for the vacancy of the year 2013 and 2015 Consequently on going appointment process are not based on constitutional mandate and are held to be illegal 18. The respondent State has already came out with advertisement of the year 2013 and 2015 respectively which was cancelled subsequently This appointment was required to be completed adhereing the extent of reservation upto 50%. Thus the said vacancies are required to be filled up in terms of Rule of that time. Accordingly the State shall advertise those posts separately within eight weeks from today 19. The advertisement of 2019 shall carry out after modifying the said advertisement afresh in light of 103rd Amendment of Constitution which was made effective w.e.f. 14.01.2019 by way of incorporating Article 16(6 in the Constitution of India. 20. Accordingly the writ petition stands allowoed and disposed of. (Sanjay Kumar Dwivedi J High Court of Jharkhand Ranchi Dated: the 21st day of January 2021 Ajay A.F.R.

A court which has competence to pass an order – interim or final, is entitled to take notice of its disobedience: Delhi High Court

A court may refuse to hear an appeal on merits involving the exact disputed parties, if its prior order has been willfully disobeyed. This was observed by the quorum of judges Vipin Singh J. and Rekha Palli J. in the matter of Sheikh M. Maroof v Phoenix Arc Pvt. Ltd. [W.P.(C) 4539/2021] where the petitioner had willfully flouted the orders of court for repayment by the Debt Recovery Tribunal (DRT). The petitioner claimed that he was a tenant in the two flats; which were mortgaged properties and had been repossessed by the respondents. The petitioner on that premise sought to move a Securitisation Application (S.A.) before the DRT under Section 17 of the SARFEASI ACT. The petitioner also sought protection against dispossession before the DRT. Despite the said order, the petitioner did not deposit the said amount of Rs.2 crores, and once again approached the DRAT, seeking extension of time on the ground that the petitioner was making arrangements for the amount and, in the interregnum, the petitioner deposited an amount of Rs.30 lakhs with the DRAT. However, the DRAT rejected the application of the petitioner. Since the petitioner did not deposit the amount of Rs.2 crores, the petitioner was issued a show cause notice on 17.12.2020 on the ground that the petitioner had disobeyed the interim direction issued by DRAT and therefore, the petitioner was required to show cause as to why action should not be taken against him. It is in pursuance of the said show cause notice, that the impugned order has been passed by the DRAT. The court relied upon the judgment of M/s Prestige Lights Limited v. State Bank of India [Civil Appeal No.3827/2007] wherein the court decided that an order passed by a competent court interim or final- has to be obeyed without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on merits. Thus, a Court which has competence to pass an order – interim or final, is entitled to take notice of its disobedience and in a given case the “drastic step” of denying a hearing to the party disobeying the order may be taken in the larger interest of justice, when the party obtaining interim relief, intentionally or deliberately, flouts such order by not abiding with the terms and conditions on which the relief is granted by the Court in his favour. The court observed that the petitioner gave an undertaking to the DRT, which he dishonoured, and his only excuse was that if he would have not given the undertaking to vacate the properties, he would have lost the possession of the properties in question. This meant that when he gave the undertaking, he did not even intend to fulfil the same. The bench sought that it could be well amount to cheating. Similarly, before the DRAT, he obtained a conditional interim order of protection against dispossession and failed to fulfil the condition, and continued to enjoy the interim protection granted by the DRAT.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 22.04.2021 W.P.(C) 4539 2021 SHEIKH M. MAROOF PHOENIX ARC PVT LTD & ORS. ..... Petitioner Through Mr. Sanjiv Kakra Sr. Adv with Mr. Anand Agrawal Adv Respondent Through Mr. Amit Kumar Chadha Sr Adv Mr. Suresh Dutt Dobhal Adv Mr. Nirmal Goenka Adv for Respondent No. 1 Phoenix ARC HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MS. JUSTICE REKHA PALLI VIPIN SANGHI JCM APPL. 13901 2021 Exemption allowed subject to all just exceptions. The application stands disposed of. W.P.(C) 4539 2021 & CM APPL. 13900 2021 The petitioner has preferred the present writ petition to seek the following reliefs: “(a) set aside order dated 23.03.2021 passed by the Hon’ble Debts Recovery Appellate Tribunal New Delhi dismissing application Miscellaneous Appeal No. 128 of 2020 titled as Sheikh M. Mahroof Versus Phoenix ARC and others pending before the Hon’ble Debts Recovery Appellate Tribunal dismissing securitisation application no. 78 of 2020 pending before the learned Debts Recovery Tribunal and also forfeiting the amount of Rs.30.00 lakhs deposited by the Petitioner along with interlocutory application no. 621 seeking extension W.P.(C) 4539 2021 of time to deposit a sum of Rs.2.00 crores directed to be deposited vide order dated 09.11.2020 restore Miscellaneous Appeal No. 128 of 2020 titled as Sheikh M. Mahroof Versus Phoenix ARC and others pending before Hon’ble Debts Recovery Appellate Tribunal. with direction to be heard and decide the same on merits restore Miscellaneous Securitisation Application No.78 of 2020 titled as Sheikh M. Mahroof Versus Phoenix ARC and Others pending before the learned Debts Recovery Tribunal with direction to be heard and decide the same on merits order for the refund of Rs.30.00 lacs deposited by the petitioner with the Hon’ble Debts Recovery Appellate Tribunal Respondent no.1 Phoenix ARC Pvt. Ltd. as the assignee of the loan granted by the Canara Bank to the respondent nos.2 and 3 i.e. ZAZ Mustang a partnership firm and ZAZMAN Exports another partnership firm has been pursuing its remedies under both the SARFESI Act and the RDDBFI Act. The respondent no.1 sought to invoke its powers under the SARFEASI Act in order to take possession of the mortgaged properties i.e. two flats being Flat No.3 Taj Apartments situated on Plot No.2B Rao Tula Marg Sector 12 R.K. Puram New Delhi and Flat No.3 Taj Apartments situated on Plot No.2C Rao Tula Marg Sector 12 R.K. Puram New Delhi. The petitioner claims that he is a tenant in these two flats and on that premise sought to move a Securitisation Applicationbefore the DRT under Section 17 of the SARFEASI ACT. The petitioner also sought protection against dispossession before the DRT. The DRT did not find any merit in the said claim for interim relief on the premise that the petitioner had not been able to establish even prima W.P.(C) 4539 2021 facie that he is a tenant in the said property as the petitioner did not produce any rent receipts or other record to establish that the petitioner is a tenant or had been paying any rent. Moreover the petitioner is the brother in law of the partner of the debtor firms. Consequently the DRT dismissed his application to seek stay against dispossession. This led to the petitioner preferring Miscellaneous Appeal No.128 2020 before the DRAT. When the matter came up before the DRAT on 09.11.2020 the petitioner again pressed for stay of dispossession wherein the DRAT granted a conditional stay against the dispossession to the petitioner by directing that he should pay Rs. 2 crores to the Receiver in case the Receiver approaches the petitioner to take physical possession of the properties. The dues against the respondent nos.2 and 3 herein were to the tune of Rs.4.55 crores in the loan account in question whereas the total liability of the respondent nos.2 and 3 is stated to be to the tune of Rs.185 crores. Thus the petitioner was not immediately dispossessed on account of the passing of the said conditional order of stay by the DRAT. However the petitioner was not satisfied with the aforesaid order passed by the DRAT and preferred W.P.(C) No. 9329 2020 before this Court to assail the order dated 09.11.2020. The said writ petition was rejected by this Court on 24.11.2020 by observing that the order passed by DRAT appears to be equitable and tests the bona fides of the petitioner. Despite the said order the petitioner did not deposit the said amount of Rs.2 crores and once again approached the DRAT seeking extension of time on the ground that the petitioner was making arrangements for the amount and in the interregnum the petitioner deposited an amount of Rs.30 W.P.(C) 4539 2021 10.02.2021. lakhs with the DRAT. However the DRAT rejected the application of the Thereafter the order refusing the grant of extension of time was assailed by the petitioner before this Court in W.P.(C) No. 1731 2021 however the said writ petition was also rejected by this Court on Since the petitioner did not deposit the amount of Rs.2 crores the petitioner was issued a show cause notice on 17.12.2020 on the ground that the petitioner had disobeyed the interim direction issued by DRAT and therefore the petitioner was required to show cause as to why action should not be taken against him. It is in pursuance of the said show cause notice that the impugned order has been passed by the DRAT. The DRAT has held the conduct of the petitioner to be contumacious by placing reliance on the judgment of the Supreme Court in M s Prestige Lights Limited v. State Bank of India 4539 2021 undertaking had been flouted. The explanation furnished by the petitioner when confronted with the said undertaking was that he had given the undertaking since he had no option and if the same had not been given he would have lost the possession of flats in question. 10. The submission of Mr.Kakra learned senior counsel for the petitioner is that the DRAT at the highest could have rejected the M.A.128 2020 which arose from an interim order passed by the DRT rejecting the petitioner’s application to seek stay against dispossession. The petitioner already stands dispossessed from the said properties as noticed in the impugned order. He submits that firstly the DRAT could not have forfeited the amount of Rs.30 lakhs deposited by the petitioner since it had vide its earlier order dated 03.02.2021 observed that the petitioner may withdraw the said amount and secondly the DRAT could not have directed the dismissal of the petitioner’s S.A. under Section 17 of the SARFEASI Act pending before the DRT since the petitioner is neither the borrower nor the guarantor in respect of the loan accounts. Mr. Kakra has submitted that the DRAT had no jurisdiction to direct dismissal of the S.A. as the same had not been adjudicated on merits and it is for the DRT to deal with the same on merits. In support of his submissions he sought to place reliance on Prem Kumar Gupta v. Bank of India & Ors.decided on 18.09.2018 wherein this Court had ruled on the extent of jurisdiction exercised by the DRAT. He also places reliance on Standard W.P.(C) 4539 2021 Chartered Bank v. Dharminder Bhohi & Ors. SCC 341] in support of his aforesaid submissions. 12. We have considered the submissions of Mr.Kakra in the light of the decisions relied upon by him. 13. No doubt the petitioner is not the borrower or the guarantor in the loan account however he was occupying valuable properties of the borrowers which are mortgaged for the purpose of liquidation of the loan account of the respondent nos. 2 & 3. Though he claims to be a tenant in the premises he has not been able to produce any creditable material before the Tribunal in support of the said claim. The Tribunal prima facie did not find any merit in the petitioner’s submission that he is a tenant. Pertinently and admittedly the petitioner gave an undertaking to the DRT that he would deliver possession of the two properties in question which he did not honour. It is no answer for the petitioner to say that the undertaking was given only to avoid dispossession when his intention was not to honour the same. This itself reflects on the dishonesty of the petitioner and is a ground in itself to completely non suit him. The DRAT granted protection to the petitioner on the condition of his depositing Rs.2 crores when he is sought to be dispossessed by the receiver appointed under the SARFEASI Act. He once again failed to comply with the condition and continued to remain in the possession since the passing of the order by the DRAT on 09.11.2020. If he were not so minded to deposit the amount he should have up front informed the DRAT about the same in which case the DRAT would not have granted the protection in the first place. However he exploited the said indulgence granted by the DRAT and thereafter W.P.(C) 4539 2021 preferred a writ petition which too came to be dismissed as aforesaid. Even thereafter he went back to the DRAT to seek extension of time that application was rejected and yet again he came to this Court only to face dismissal of his second writ petition. The result of the machinations adopted by the petitioner was that he was able to prolong his dispossession from the properties thereby preventing the sale of the said properties by respondent no.1 for a period of about five months. Mr.Chadha who appears for the respondent no.1 points out that the endeavour of the respondent no.1 to take possession has been blocked by the borrowers and the petitioner for the last about 10 years. In the aforesaid context the petitioner was issued the show cause notice on 17.12.2020 which forms the basis of the impugned order. The learned DRAT has taken note of the aforesaid developments in the impugned order and placed heavy reliance on M s Prestige Lights Limited supra) decided on 20.08.2007. We may extract the observations of the Supreme Court in M s Prestige Lights Limitedwhich had been also relied upon by the DRAT in the impugned order: “17. But there is an additional factor also as to why we should not exercise discretionary and equitable jurisdiction in favour of the appellant. It is contended by the learned counsel for the respondent Bank that having obtained interim order and benefit thereunder from this Court the appellant Bank has not paid even a pie. The appellant is thus in contempt of the said order. The Company has never challenged the condition as to payment of amount as directed by this Court. Thus on the one hand it had taken benefit of the order of interim relief and on the other hand did not comply with it and failed to pay instalments as directed. Neither it raised any grievance against the condition as to payment of instalments nor made any application to the Court for modification of the condition. It continued to enjoy the W.P.(C) 4539 2021 benefit of stay ignoring and defying the term as to payment of money. The Company is thus in contempt of the order of this Court has impeded the course of justice and has no right of hearing till it has purged itself of the contempt. 18. As already noted stay of dispossession was granted by this Court on mention being made on April 28 2005. The matter was then notified for admission hearing on May 6 2005. A two Judge Bench of which one of us was a partypassed the following order Permission to file additional documents is granted. Issue notice. Subject to the petitioner s depositing an amount of Rs.20 lakhs per month in this Court there will be stay of the operation of the impugned order. First of such payment shall be made by 6th June 2005 and the subsequent payments by 6th of each succeeding month. In default of payment of any one instalment the stay will stand vacated." 19. From the above order it is clear that notice was issued to the other side and stay granted earlier was ordered to continue on the appellant s depositing a sum of Rs. 20 lakhs per month in this Court. It was also made clear that first of such payment should be made by 6th June 2005 and subsequent payments by 6th of each succeeding month. A default clause was also introduced in the order that if such payment would not be made the stay would stand vacated. It is an admitted fact that the order has not been complied with and no payment as per the order has been made by the appellant Company to the respondent Bank. The said fact has also been reflected in the order of this Court passed on July 25 2007 wherein it was stated It is recorded that the stay is transgressed by reason of the admitted non compliance with the order dated 6th May 2005". 20. The original order was of May 2005 and the matter was heard finally in May 2007. Thus about two years had passed and the order has been thwarted with impunity. In our opinion therefore the learned counsel for the respondent Bank is right that such appellant does not deserve sympathy from the Court. W.P.(C) 4539 2021 21. An order passed by a competent court interim or final has to be obeyed without any reservation. If such order is disobeyed or not complied with the Court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a drastic step and such a serious penalty should not be imposed on him except in grave and extraordinary situations but some time such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding the terms and conditions on which a relief is granted by the Court in his favour. 22. In the leading case of Hadkinson v. Hadkinson 2 All ER 567 the custody of a child was given to the mother by an interim order of the court but she was directed not to remove the child out of jurisdiction of the Court without the prior permission of the Court. In spite of the order the mother removed the child to Australia without prior permission of the Court. On a summons by father the Court directed the mother to return the child within the jurisdiction of the Court. Meanwhile an appeal was filed by the mother against that A preliminary objection was raised by the father that as the appellant was in contempt she was not entitled to be heard on merits. 23. Upholding the contention and speaking for the majority Romer L.J. observed I am clearly of the opinion that the mother was not entitled in view of her continuing contempt of court to prosecute the present appeal and that she will not be entitled to be heard in support of it until she had taken the first and essential step towards purging her contempt of returning the child within the jurisdiction. 24. In a concurring judgment Denning L.J. also stated The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains W.P.(C) 4539 2021 in Australia it is impossible for this court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case so that whatever order is made this court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order but nevertheless once she came to know of it she ought to have put the matter right by bringing the boy back. Until the boy is returned we must decline to hear her appeal."25. That however does not mean that in each and every case in which a party has violated an interim order has no right to be heard at all. Nor the court will refuse to hear him in all circumstances. The normal rule is that an application by a party will not be entertained until he has purged himself of the contempt. There are however certain exceptions to this rule. One of such exceptions is that the party may appeal with a view to setting aside the order on which his alleged contempt is founded. A person against whom contempt is alleged must be heard in support of the submission that having regard to the meaning and intendment of the order which he is said to have disobeyed his actions did not constitute a breach of it. 26. In Gorden v. Gorden 73 LJ 41 : 90 LT 597 : 16 Dig 90 1128 Cozens Hardy L.J. put the principle succinctly in the following words ".I desire expressly to limit my judgment to a case in which the party in contempt] is saying that the order complained of is outside the jurisdiction of the court as distinguished from the case of an order which although it is within the jurisdiction of the court ought not it is said to have been made." 27.Lord Denning made the following pertinent observations in Hadkinson It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his W.P.(C) 4539 2021 36. For the foregoing reasons we hold that by dismissing the petition in limine the High Court has neither committed an error of law nor of jurisdiction. The appellant Company is not entitled to any relief. Though the respondent Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has therefore no right to claim hearing on merits we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent Bank or the order passed by the High 37. The appeal therefore deserves to be dismissed and is accordingly dismissed with costs.”(emphasis supplied) 16. Thus a Court which has competence to pass an order interim or final is entitled to take notice of its disobedience and in a given case the “drastic step” of denying a hearing to the party disobeying the order may be taken in the larger interest of justice when the party obtaining interim relief intentionally or deliberately flouts such order by not abiding with the terms and conditions on which the relief is granted by the Court in his favour. In the present case as noticed hereinabove the petitioner himself furnished an undertaking before the DRT that he would hand over the physical possession of the properties in question. He failed to honour that undertaking. He cannot be heard to argue that even though he may have given the undertaking and on that premise warded off his dispossession from the properties in question and thereby taken respondent No.1 as well as the Tribunal for a ride he should be heard on merits on his Securitization Application particularly when he is not able to make out W.P.(C) 4539 2021 even a prima facie case to establish the so called status of a tenant in the said properties. The DRAT while adjudicating on the show cause issued to the petitioner has taken notice of the aforesaid conduct of the petitioner and it is for the aforesaid reasons that not only his Miscellaneous Appeal pending before the DRAT but also his S.A. pending before the DRT was directed to be dismissed. 18. The decisions relied upon by the petitioner in our view are not attracted in the facts of the present case. Prem Kumar Guptawas a case where the petitioner who had not been served earlier was directed to deposit 25% of the amount demanded by the applicant bank when he appeared even without adjudication of the Original Application. His application for review of the said order was also rejected by the Tribunal. 19. A similar direction was issued against a co respondent to the Original Application which was assailed before the DRAT. The said direction for deposit of 25% of the amount claimed was suspended by the DRAT in the appeal of the co respondent. Though the petitioner had also preferred an appeal to seek the same relief before the said relief could be granted the matter came up before the DRT. Since the petitioner had not made the deposit he was issued a notice to show cause as to why appropriate proceedings should not be initiated against him for defying the orders of the Tribunal. The petitioner then preferred a Writ Petition before this Court. This Court granted interim protection to him with a direction to DRAT to consider the petitioner’s prayer for stay on an early date. The DRAT however dismissed the appeals preferred by the petitioner and the co respondent against the direction of the DRT to W.P.(C) 4539 2021 deposit 25% of the amount claimed in the Original Application. That order of the DRAT was the subject matter of the Writ Petition before the High Court on which the aforesaid decision in Prem Kumar Gupta supra) came to be passed. It was in the aforesaid context that this Court disapproved the observations of the DRAT that Section 19(25) of the RDDBFI Act confers upon the DRT a jurisdiction akin to the one vested in the High Court under Section 482 of the Cr. P.C. This Court held that the Tribunal is not vested with a general power to direct the defendant to furnish security or in case of a default on his part to order attachment of his property. There is no power conferred by the statute on the Tribunal to ask the defendant to deposit the amount claimed in the application under Section 19 before the claim is adjudicated upon. 21. Thus it would be seen that Prem Kumar Guptawas not a case dealing with the conduct of a party which was found to be contumacious or dishonest as in the present case. 22. Padam Singheewas a case where the DRT in the Original Application filed by the Asset Reconstruction Company directed the petitioner before the Court respondent before the DRT to take its prior permission before leaving the country. Against that order the petitioner preferred an appeal before the DRAT. The DRAT instead of dealing with the appeal directed the petitioner to show cause as to why appropriate orders under Section 19(13)(A) and 19(18)(25) of the Recovery of Debts and Bankruptcy Act 1993 including appointment of Receiver for the assets be not passed and further directed the petitioner W.P.(C) 4539 2021 to furnish details of their bank accounts and restrain them from operating any of their bank accounts. The petitioner then decided to withdraw its appeal before the DRAT. Despite the appeal being dismissed as withdrawn the DRAT continued the proceedings with respect to the show cause notice issued by it suo moto on the ground of public interest. It was in this background that this Court disapproved of the action of the DRT DRAT. While doing so this Court relied on Standard Chartered Bank supra). In Standard Chartered Bank the Supreme Court had observed that the Tribunal is required to function within the statutory parameters and it does not have the inherent powers and it is limpid that Section 19(25) confers limited powers. 23. The aforesaid decisions in our view are not attracted in the facts of the case taken note of hereinabove. The conduct of the petitioner both before the DRT and the DRAT which we have taken note of hereinabove was such that it disentitled the petitioner to a hearing. 24. The petitioner gave an undertaking to the DRT which he dishonoured and his only excuse was that if he would have not given the undertaking to vacate the properties he would have lost the possession of the properties in question. This means that when he gave the undertaking he did not even intend to fulfil the same. This could well amount to cheating. Similarly before the DRAT he obtained a conditional interim order of protection against dispossession and failed to fulfil the condition and continued to enjoy the interim protection granted by the DRAT. In our view the decision in M s Prestige Lights Limitedis squarely attracted in the facts of the present case and the three decisions relied W.P.(C) 4539 2021 upon by the petitioner do not deal with the fact situation similar to the one with which we are concerned. 25. For the aforesaid reasons we are not inclined to exercise our discretionary jurisdiction of judicial review in favour of the petitioner. We accordingly dismiss the present petition along with the pending applications with costs quantified at Rs. 2 00 000 to be paid to the Delhi High CourtLegal Aid Society within two weeks. 26. Dismissed. VIPIN SANGHI J REKHA PALLI J APRIL 22 2021 W.P.(C) 4539 2021

The consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act: High Court of Delhi

The court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. Thus, the court must examine whether there was a false promise made at an early stage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE SUBRAMONIUM PRASAD in the case of CAPT SIMRANJIT SINGH SAMBHI vs. STATE (NCT OF DELHI) AND ANR. [CRL.M.C. 2960/2021] on 07.03.2022. The facts of the case are that the complainant addressed a complaint to the S.H.O, wherein, it was stated therein that she was in a relationship with the Petitioner for three years and when she was told by the Petitioner that he was a divorcee the complainant was shocked. It was stated that the Petitioner had promised to marry her while he was in a relationship with someone else. It was stated that the Petitioner went to her house and abused and assaulted her. It was further stated that the Petitioner called the complainant to his house to settle the issue of marriage with her and on reaching the house the complainant was stopped from entering the house and he threatened her with dire consequences. The Petitioner’s brother-in-law outraged her modesty and his uncle touched her inappropriately and she, fearing for her safety, escaped from there. The respondent’s counsel submitted that the matter had been compromised amicably and stated that the complainant has no objection to quash FIR against the Petitioner. The High Court shall not exercise their plenary powers under Section 482 CrPC to quash heinous offences such as rape, murder, dacoity etc. that are essentially crimes against the society and not merely an individual. The petitioner’s counsel submitted that the Petitioner and Complainant were in a long-term relationship of four years which turned sour and the Petitioner was being falsely implicated in the matter. It was contended that the complainant had previously filed a written complaint to the S.H.O. Tilak Nagar stating that the Petitioner had promised to marry her and assaulted her and that the said complaint was retracted by her stating that she had harmoniously resolved her issue with the Petitioner. The Court was of the opinion that it is fit for this Court to exercise its power under Section 482 CrPC to quash the present FIR. The Court observed that, “There is a clear distinction between rape and consensual sex. The court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. Thus, the court must examine whether there was a false promise made at an early stage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 07th MARCH 2022 IN THE MATTER OF: CRL.M.C. 2960 2021 & CRL.M.A. 18641 2021CAPT SIMRANJIT SINGH SAMBHI ..... Petitioner Through Mr. K.K. Manan Senior Advocate with Ms. Uditi Bali Advocate. STATEAND ANR ..... Respondents Through Ms. Neelam Sharma APP for the State with W ASI Saroj PS Tilak Mr. Shikhar Tandon Advocate for the prosecutrix along with prosecutrix in person. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present writ petition is filed under Section 482 Cr.P.C seeking quashing of FIR No. 143 2021 at PS Tilak Nagar on 02.03.2021 for offences under Section 376(2)354 354A IPC. The Relevant facts of the case are chronologically given as hereunder On 08.10.2020 the complainant addressed a complaint to the S.H.O. Tilak Nagar. It was stated therein that she was in a relationship with the Petitioner for three years and when she was told by the Petitioner that he was a divorcee the complainant was shocked. It was stated that the Petitioner had promised to marry her while he was in a relationship with CRL.M.C. 2960 2021 someone else. It was stated that the Petitioner went to her house and abused and assaulted her. On 9.10.2020 the complainant withdrew the complaint given on 8.10.2020 stating that there was a misunderstanding between the Petitioner and her which was later resolved. On 13.2.2021 another complaint was given by the complainant to the SHO Tilak Nagar stating that she had lodged a complaint that the petitioner promised to marry the complainant four months ago and after reconciling with her had asked for nine month of time to marry the complainant. It is stated that the Petitioner went to her house abused her and then beat her The complainant gave yet another complaint to the S.H.O. Tilak Nagar which was recorded vide LC 381 SHO TN on 13.02.2021. It was stated that the Petitioner and the complainant became friends four years ago and that he would frequently visit the complainant’s house. It is stated that about a year ago the petitioner visited her house at a time when her mother had gone to Punjab and her sister was in the other room the Petitioner forced her to have intercourse with him by promising to marry her. It is stated that the Petitioner and complainant would roam around with each other and he would blackmail the complainant by showing her explicit videos of her with an intention to threaten her as his uncle and mother did not want the Petitioner and complainant to get married. It is stated when the Petitioner stopped talking to her she visited the house of the Petitioner where the mother uncle and brother in law of the CRL.M.C. 2960 2021 Petitioner turned the complainant out of the house from the gate in front of neighbours and did not allow her to meet the Petitioner. It is stated that the Petitioner’s uncle told her that he would not allow the Petitioner to marry her and sent her vulgar videos. It is stated that the Petitioner resiled from marrying the complainant after establishing physical relations with her on the false promise of marriage. Another complaint dated 19.02.2021 was lodged by the complainant. It was stated by her that she met the Petitioner via Facebook after 3 4 months of chatting the Petitioner introduced himself as a pilot in Air India and in April 2017 Petitioner started coercing the complainant to meet him. After repeated requests on 17.4.2017 the complainant agreed to meet the Petitioner at Royalush Banquet Hall at Wazirpur which was owned by her brother in law and spent 3 4 hours with him after which the Petitioner dropped the complainant at her house. It is stated that he started visiting her house more frequently became familiar with her mother and brother and claimed to be unmarried. It is stated on 10.5.2017 she was called to the birthday party of the mother of the Petitioner at his residence from where the Petitioner picked her up. It is stated that on 15.8.2017 the Petitioner came over to the house of the complainant when her mother had gone to Punjab her brother was not at home and her sister Manpreet was in her bedroom and he gave her a bottle of juice and said to the complainant that they will celebrate Independence Day. It is stated that after consuming the liquid she became unconscious and on waking CRL.M.C. 2960 2021 up she found herself naked covered in a bed sheet and shouted and abused the petitioner for raping her after lacing her drink with some intoxicant. The Petitioner sat on the bed and threatened her by showing her video of him having intercourse with her. It is stated that the Petitioner blackmailed complainant saying that he will make the video viral by sharing it on facebook and forcibly established sexual relations with her until 18.8.2020. It is further stated that on 7.10.2020 the Petitioner called the complainant to his house to settle the issue of marriage with her and on reaching the house the complainant was stopped from entering the house by the mother brother in law and uncle of the Petitioner and threatened her with dire consequences. It is stated that the Petitioner’s brother in law outraged her modesty and his uncle touched her inappropriately and she fearing for her safety escaped from there. Based on the above complaint FIR No. 143 2021 dated 2.3.2021 at PS Tilak Nagar for offences under Section 376(2)(n) 354 and 354A IPC was registered against the petitioner and his family members. The complainant refused to be medically examined at DDU Hospital and vide MLC No. 95 2021 on 02 03 2021. During investigation the Petitioner’s mobile phone was seized and its CDR & CAF were sought to be retrieved to see if the Petitioner had obscene videos of the complainant. Further the CDR’s and CAF’s of complainant and co accused are yet to be received. It was noted that the co accused Khushwajeet CRL.M.C. 2960 2021 Alhuwalia and Udit Sabhrawal have cooperated with interrogations and were not arrested during investigation. This Court granted protection from arrest to the Petitioner by order dated 15.3.2021 in Bail Application No. 886 2021. Chargesheet was filed on 29.5.2021. It was submitted by the Ld. Counsel for the Complainant that the matter had been compromised amicably and stated that the complainant has no objection to quash FIR No. 143 2021 at Paschim Vihar Police Station against the Petitioner. This Court firmly declined the prayer staying cognizant of the principle that the High Court shall not exercise their plenary powers under Section 482 CrPC to quash heinous offences such as rape murder dacoity etc that are essentially crimes against the society and not merely an individual as has been held in a catena of judgments of the Supreme Court5 SCC 408 Parbatbhai Aahir V. State of Gujarat9 SCC) 641] and requested the learned Senior Counsel to argue on the merits of the case. 4. Mr. K.K. Manan Ld. Senior Counsel appearing for the Petitioner submitted that the Petitioner and Complainant were in a long term relationship of four years which turned sour and the Petitioner was being falsely implicated in the matter. He submitted that there is a delay of four years in filing of the FIR with respect to incident complained of. He contended that the complainant had previously on 8 10 2020 filed a written complaint to the S.H.O. Tilak Nagar stating that the Petitioner had promised to marry her and assaulted her and that the said complaint was retracted by her on 9.10.2020 stating that she had harmoniously resolved her issue with the Petitioner. CRL.M.C. 2960 2021 He submitted that the complainant’s version of the story is completely fabricated and is based on hoax statements given to the Police at different points of time and that there are marked discrepancies between the FIR lodged and the Section 164 statement of the complainant. He contends that there has been material improvement in her statements given to the Police at every juncture right from the start of her complaints i.e. from 8.10.2020 to complaint of 13.2.2021 to complaint of 19.2.2021 to the FIR filed on 02.03.2021 and finally to her Section 164 statement recorded at the time of investigation. Further he submitted the complainant during investigation refused to get her internal medical examination done and did not submit her mobile phone to the investigating agency. 6. Mr. Manan argued that the Petitioner was granted anticipatory protection from arrest by the High Court and sincerely cooperated with the investigating agency at all times. He further argued that the Petitioner had lodged a complaint dated 24.2.2021 with the Commissioner of Police and the Dy. Commissioner of Police for offences under Sections 384 386 388 419 420 506 read with 120B & 34 IPC against the complainant stating he was being extorted for money by the complainant and that she circulated his objectionable photographs to his friends and family. He states that the complaint letter was supplied with video footages of the days on which the complainant visited the house of the Petitioner. He submitted that on this complaint FIR No. 389 2021 at PS Paschim Vihar got registered on He submitted that there was no promise to marry the complainant and relied on the judgments of the Apex Court in Pramod SuryabhanPawar V. State of Maharashtra(2019) 9 SCC 609 Sonu@ Subash Kumar V. State of Uttar Pradesh(2021) SCC Online SC 181 and submitted that there is a CRL.M.C. 2960 2021 difference between false promise to marry and breach of promise with the difference being that in false promise to marry one has to induce the complainant from the inception only for engaging in sexual relations with her without any intention to marry her at all whereas breach of promise would be when a person had the intention of keeping the promise at the time of establishing sexual relations. Per contra Ms. Neelam Sharma Ld. APP for the State vehemently opposed the quashing of FIR registered against the Petitioner. She submitted that the offence of rape is a grave offence and notwithstanding the all encompassing power of the Court under Section 482 CrPC it should be circumspect in exercising its power in cases where heinous allegations are made. She submitted that allegations contained in FIR were serious in as much as the complainant was given a stupefying drink whereafter she became semi conscious and the Petitioner raped her and recorded her in an intimate position to blackmail her. She contended that the discrepancies in her FIR and Section 164 statement have to be evaluated during Trial and not in the instant proceedings. She placed reliance on the judgments in Bhawna Bai V. Ghyanshyam 2020) 2 SCC 417 State of Rajasthan V. Ashok Kumar Kashyap SCCOnline SC 314 and order dated 06.01.2022 in Hazrat Deen V. State of U.P.to contend that a Court could not discharge an accused merely on the discrepancy in the FIR and Section 164 statement of a prosecutrix and submitted that the same must be dealt with during Trial and not pre emptively dealt under Section 482 proceedings. She further submitted that the Petitioner was protected by the orders of this Court which had been extended from time to time and apprehended no danger to his liberty. Therefore no interference was warranted by this Court for exercising CRL.M.C. 2960 2021 its powers under Section 482 CrPC and submitted that this petition be 10. The learned counsel for the Complainant did not address any 11. Heard Mr. K.K. Manan Ld. Senior Counsel appearing for the Petitioner and Ms. Neelam Sharma Ld. APP for the State and perused the material on record. 12. Material on record submits that the complainant gave her first complaint against the Petitioner on 8.10.2020 wherein she was aggrieved by the Petitioner’s decision to not marry her. She retracted her complaint on the next day i.e. 9.10.2020. She again filed a complaint with the S.H.O on 13.02.2021 wherein she stated that the Petitioner had sought for nine months’ time to deliberate on the offer of marriage and now refuted his position taken earlier. She filed another complaint on the same day with the S.H.O. wherein she narrated an incident that had happened four years ago as per which he had forced himself upon her against her wishes and that when she visited the house of the Petitioner she was manhandled by the relatives of the Petitioner. She filed one more complaint on 19.2.2021 containing the same allegations and additionally it was stated that in 2017 when the Petitioner allegedly committed intercourse against her will he allegedly gave her an intoxicating juice and filmed an obscene video of her based on which the impugned FIR was lodged. Each subsequent complaint made by the complainant contains improvements from the last one. 13. Further the Petitioner also lodged a complaint on 24.2.2021 which was later converted into an FIR No. 381 2021 with the S.H.O. P.S. Paschim Vihar stating that he met the complainant in 2017 developed a friendship and after the death of his father in August 2020 the complainant started CRL.M.C. 2960 2021 blackmailing him to marry her and threatened to lodge a false case against him if he didn’t pay Rs. 1 crore to her. It was further stated in the complaint that she took explicit pictures of him and threatened to make it viral if her demands were not met. It is stated that he paid the complainant 1.5 lakh rupees to withdraw the complaint she had lodged on 8.10.2020. The Petitioner submitted CCTV recordings of the dates on which the complainant barged into his house and extorted the Petitioner and threatened to ruin the family’s peace. 14. The complainant in the FIR stated that she was given juice by the Petitioner which made her semi conscious whereas in her Section 164 statement she stated she was given wine by the petitioner. She did not file a complaint and did not get herself medically examined which would have substantiated that she had been given some intoxicating substance. In the FIR it was stated that on 15.8.2017 when the Petitioner visited her house her mother was in Punjab attending the funeral last rites of her brother whereas in her 164 statement she stated that her mother is bed ridden and unable to walk. She stated in her Section 164 statement that she was divorced and the Petitioner still established relations with her assuring her he would marry her whereas in the FIR there was no such allegation. Further in the FIR it is stated that when she went the Petitioner’s house on 7.10.2020 the petitioner’s brother in law and uncle chased her out of the house and that whereas in her 164 statement she states that when she was turned out of the Petitioner’s house and that the petitioner’s uncle and brother in law told her that if she wanted to marry the Petitioner she would have to establish sexual relations with the uncle and brother in law. The 164 statement also states that the Petitioner threatened to kill the complainant on CRL.M.C. 2960 2021 13.02.2021 which is in contrast with the FIR which records no such 15. A perusal of the material on record indicates that the complainant and the Petitioner were in a consensual relationship with each other for four years before the impugned FIR was filed against the Petitioner alleging establishing sexual relations with the complainant under a false promise to 16. The Apex Court has succinctly laid down as to when the consent of a women under Section 375 IPC is vitiated on the ground of "misconception of facts". In Deepak Gulati v. State of Haryana 7 SCC 675 the Apex Court has observed as under: 21. Consent may be express or implied coerced or misguided obtained willingly or through deceit. is an act of reason accompanied by deliberation the mind weighing as in a balance the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this the court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise and not fulfilling a false promise. Thus the court must examine whether there was made at an early stage a false promise of marriage by the accused and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused or where an accused on account of circumstances which CRL.M.C. 2960 2021 he could not have foreseen or which were beyond his control was unable to marry her despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide and that he had clandestine motives. 24. Hence it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself the accused had no intention whatsoever of keeping his promise to marry the victim. There may of course be circumstances when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date due to reasons that are not very clear from the evidence available does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact” the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation to pardon the act of a girl in entirety and fasten criminal liability on the other unless the court is assured of the fact that from the very beginning the accused had never really intended to marry her." 17. While dealing with a petition under Section 482 CrPC in a case of establishing sexual relationship on false promise to marry the Apex Court while quashing the FIR in Pramod Suryabhan Pawar v. State of Maharashtra Anr. 9 SCC 608 after relying on the judgment of Deepak Gulati supra) the Apex Court has observed as under: 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the CRL.M.C. 2960 2021 is vitiated on woman to convince her to engage in sexual relations there is a “misconception of fact” that vitiates the woman s “consent”. On the other hand a breach of a promise cannot be said to be a false promise. To establish a false promise the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under the ground of a Section 375 “misconception of fact” where such misconception was the basis for her choosing to engage in the said 18. To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman s decision to engage in the sexual act." In yet another case while quashing an FIR alleging an offence of Section 375 IPC in case of a promise to marry the Apex Court in Sonu @ Subhash Kumar v. State of Uttar Pradesh & Anr. 2021 SCC OnLine SC 181 after relying on Pramod Suryabhan Pawar has observed as under: 11. Bearing in mind the tests which have been enunciated in the above decision we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC no offence has been established. There is no allegation CRL.M.C. 2960 2021 to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established." In the FIR it is stated that the mother and the uncle of the petitioner did not want the petitioner to get married to the complainant and that when she visited the house of the petitioner the mother uncle and the brother of the petitioner turned the complainant out of the house in front of neighbours who did not allow her to marry the petitioner. The complainant has not only alleged the complaints against the petitioner but also against the uncles and his brothers in law. 20. Section 90 IPC stipulates that consent given under fear or misconception cannot be said to be consent. In this context it becomes relevant to factor in the aspect that the prosecutrix was in a long term relationship spanning a period of four years and the FIR was only filed after the said relationship ended on hostile terms. Therefore it cannot be said that the consent so accorded for establishment of physical realationship was predicated upon misconception of fear. The chargesheet mentions that the complainant refused to get medically examined and did not initially cooperate with the investigation. The material on record so far establishes that there are substantial embellishments in the Section 164 statement that are not mentioned in the FIR. Apart from that there are notable CRL.M.C. 2960 2021 discrepancies in each of the successive complaints of the petitioner that make it seem that a private dispute is being aggravated for ulterior purposes and the process of the law is being used as a tool for settling personal scores. 21. Taking into account the material contradictions and keeping in mind substantial improvements made by the complainant at every stage this Court of the opinion that it is fit for this Court to exercise its power under Section 482 CrPC to quash the present FIR. Resultantly FIR No. 143 2021 filed at PS Paschim Vihar for offences under Section 376(2)n 354 354 A IPC and all proceedings emanating therefrom is hereby quashed. 22. The petition is disposed of with the above observations along with pending application(s) if any. MARCH 07 2022 SUBRAMONIUM PRASAD J CRL.M.C. 2960 2021

Writ of Mandamus issued under, Article 226/227 of the Constitution of India : High Court of Patna

The petitioner humbly prays in this criminal writ petitioner under Article 226/227 of the Constitution of India read with Section 3 sub sections (1) (a), 6 and 7 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 and Rule 6 of the Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007 for the court to issue a writ of mandamus to the respondents to extend the time period of the parole for another one month to perform a ceremony of the father of the petitioners.   In the High Court of Punjab and Haryana at Chandigarh, this judgement was given by Honorable Mr Justice Jaswant Singh and Honorable Mr. Justice Sant Parkash on the 20th of September  2021 in the case of Yogesh @ Bittu and Anr. Versus the State of Haryana and others [Criminal Writ Petition-8781-2021] Mr. R.S. Dhull represented as the advocate for the petitioner, and Mr. Vivek Saini, Addl. A.G represented the state of Haryana, the proceedings of the court were held via video conference. The case relates to the facts wherein the petitioners were convicted and sentenced to life imprisonment under Section 148 of the Indian Penal Code, “Rioting, armed with deadly weapon”, Section 149 “Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object”, Section 302, “Punishment for murder”, Section 364, “Kidnapping or abducting in order to murder”, Section 201, “Causing disappearance of evidence of offence, or giving false information to screen offender”, Section 216 IPC, “ Harbouring offender who has escaped from custody or whose apprehension has been ordered” and Section 25 of the Arms Act, “Punishment for certain offences whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5” In the FIR no. 83 on the 28th of February 2015 in Police Station Sadar Bahadurgarh, in the District of Jhajjar.   The counsel representing the petitioners submitted that the petitioners were granted emergency parole for one week by the Superintendent District Jail, Jhajjar, till the 15th of September 2021 as their father passed away due to cancer and they were required to perform rituals and last rites of their father. The same parole was extended vide an order passed by this court till 21st September 2021. However now there is certain ceremony called chamai which is supposed to be held on the 27th September 2021 and as the petitioners are his sons their presence is mandatory. The petitioner further submitted an application along with a panchayat report which states that extension of parole has already been moved before the Superintendent District Jail, but no decision has been undertaken. Therefore, this prayer has been made. The counsel representing the state of Haryana filed an affidavit regarding the verification of the report and held that only the terahvi ceremony was performed and not the chamai ceremony. The counsel further held that during special parole that was granted because of Covid-19 the petitioners were arrested in another FIR no. 257 under Section 506, 34 IPC & 25/54/59 of Arms Act, Police Station Sadar Bahadurgarh and lodged in jail. Therefore, prays for dismissal of the instant petition. The Honourable Court held that, “In view of the above, the temporary parole already granted to the petitioners by respondent No.4 on 06.09.2021 and extended by this Court vide order dated 14.09.2021, is further extended upto 30.09.2021, enabling them to perform “chamai ceremony, which is fixed for 27.09.2021, on previous bail bonds already furnished. The petitioners are directed to surrender before the Jail authorities on 01.10.2021 before 12:00 Noon.”

on 23 09 CRWP 8781 2021 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP 8781 2021 DATE OF DECISION: 20.09.2021YOGESH @ BITTU AND ANR. ...PETITIONERS...V.STATE OF HARYANA AND OTHERS...RESPONDENTS...CORAM: HON BLE MR. JUSTICE JASWANT SINGH HON BLE MR. JUSTICE SANT PARKASHPresent:Mr. R.S. Dhull Advocate for the petitioners.Mr. Vivek Saini Addl. A.G. Haryana. SANT PARKASH J.(a) 6 and 7 of the Haryana Good Conduct PrisonersAct 1988and Rule 6 of the Haryana Good Conduct PrisonersRules 2007 is for issuance of a writ in the nature of mandamus directing the respondents to extend the time period of temporary release on parole for another four weeks to perform "terahvi" and "chamai" ceremony of father of the petitioners which is fixed 27.09.2021. on 23 09 CRWP 8781 2021 2 The petitioners were tried in FIR No.83 dated 28.02.2015 under Sections 148 149 302 364 201 216 IPC and Section 25 of te Arms Act Police Station Sadar Bahadurgarh District Jhajjar and accordingly they have been convicted and sentenced to undergo imprisonment for life vide judgment of conviction and order of sentence dated 17.07.2018. Against the judgment of conviction and order of sentence petitioners filed an appeal before this Court which is still pending admitted for final adjudication.Learned counsel for the petitioners submits that earlier the petitioners were granted emergency parole for one week by the Superintendent District Jail Jhajjar District Jhajjar till 15.09.2021 to perform last rites and ritual of their father who died on 05.09.2021 due to cancer which is extended upto 21.09.2021 vide order dated 14.09.2021 passed by this Court. Now "chamai" ceremony of their late father is fixed for 27.09.2021 and being sons their presence is very much necessary to perform aforesaid ceremony and to make necessary arrangements. Learned counsel for the petitioners further submits that an application dated 11.09.2021alongwith panchayat reportseeking extension of parole already granted to the petitioners has already been moved before the Superintendent District Jail Jhajjar but till date no decision has been taken. He further submits that the petitioners had already availed the concession of parole on several occasions but never misused the same. Thus he prays for extension of parole to perform aforesaid ceremonies and make arrangements. on 23 09 CRWP 8781 2021 3 Today learned State counsel has filed short reply by way of affidavit of Jangsher Singh Deputy Superintendent District Jail Jhajjar on behalf of respondents No.1 to 4 stating therein as per verification report "terahvi ceremony of petitioners father has already been performed on 16.09.2021 and "chamai" ceremony is fixed for 27.09.2021.Learned State counsel further submits that during special parole granted to the petitioners due to outbreak of Covid 19 as per direction issued by the Hon ble High Powered Committee the petitioners were arrested by police in another FIR No.257 dated 13.10.2020 under Section 506 34 IPC & 25 54 59 of Arms Act Police Station Sadar Bahadurgarh and lodged in jail on 26.11.2020 and 14.10.2020 respectively. Thus he prays for dismissal of instant petition.Heard the arguments of learned counsel for the parties and have also perused the documents available on the file.Admittedly the "terahvi" has already been performed and "chhamai" ceremony of father of the petitioners is fixed for 27.09.2021 and the petitioners being sons have to make necessary arrangements and perform certain rituals ceremonies. In view of the above the temporary parole already granted to the petitioners by respondent No.4 on 06.09.2021 and extended by this Court vide order dated 14.09.2021 is further extended upto 30.09.2021 enabling them to perform "chamai ceremony which is fixed for 27.09.2021 on previous bail bonds already furnished. The petitioners are directed to surrender before the Jail on 23 09 CRWP 8781 2021 4 authorities on 01.10.2021 before 12:00 Noon.A copy of this order be supplied to learned State counsel and be also sent to respondent No.4 Superintendent District Jail Jhajjar District Jhajjar for ensuring requisite compliance.JUDGE JUDGE 20.09.2021sonika whether speaking reasoned:Yes Nowhether reportable:Yes No

Examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not: Supreme Court

Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff in decreeing specific performance. However, it is within the discretion of the Court based on the facts of each case, as to whether some additional amount ought or ought not to be paid once a decree of specific performance is passed. This auspicious judgment was recently passed by the Supreme Court of India in the matter of A.R. MADANA GOPAL V M/S RAMNATH PUBLICATIONS PVT. LTD. AND ANR. [Civil Appeal Nos.3523-3526 of 2010] by Honourable Justice L. Nageswara Rao and Justice S. Ravindra Bhat. These Appeals are filed against the judgment of the Division Bench of the Madras High Court by which a decree for specific performance passed by the learned Single Judge was reversed. Appellant filed four suits for specific performance of the agreements of sale dated 20.03.1991 and Memoranda of Understanding (MOU) dated 24.01.1994 and also prayed for a direction to deliver vacant possession of the schedule property at the dispense of the respondent and a decree of permanent injunction restraining the Respondents from alienating or encumbering the suit property and a decree of mandatory injunction to deposit the title deeds with the Court. It was alleged that the Respondent entered into separate agreements and the sale was to be concluded within a period of four months. The Respondents would produce the encumbrance certificate much before the execution and registration of the sale deeds and obtain the income tax. To comply with these terms the Respondent applied to the Income Tax authorities for permission to alienate the property and an order for compulsory acquisition of property was passed. This order of the Income Tax authority was challenged in a writ petition in Madras High Court and the authorities were directed to reconsider the matter afresh. Another order directing the purchase of the property was passed and an interim order of injunction was given by the HC. The parties were directed to not change the nature of the property and henceforth Appellants and Respondents entered into four separate MOUs and these were in addition and not in substitution. It was agreed that the Respondents shall continue to keep the original title deeds until completion of the sale by registration of the sale deeds. Certain amounts were paid by the Appellants and the balance of the sale price shall be paid to the Respondents at the time of registration of the sale deeds immediately after the disposal of the Writ Petitions in their favour. The Writ Petitions filed against the compulsory acquisition by the Income Tax authorities were disposed and the judgment of the learned Single Judge of the High Court allowing the Writ Petitions was challenged by the Income Tax department by way of filing an appeal. When the Appellants made a demand for execution of sale deeds, the Respondents informed them that it can be done only after disposal of the Writ Appeal. Indian Bank filed a suit for recovery of its dues from the Respondents as the Respondents were not executing the sale deeds in spite of repeated requests, the Appellants filed separate suits for specific performance. It was observed that “The Appellants were always ready and willing to perform their part of the agreement. The Appellants asserted that the interpretation of the MOU is contrary to the well-settled law of this Court. The Division Bench of the High Court placed undue emphasis on the word “immediately” to conclude that the Appellants failed to pay the balance consideration immediately after the disposal of the Writ Petition.” It was also added, “The High Court lost sight of the words “at the time of registration of sale” in clause 3 of MOUs. A plain reading of clause 3 in the MOU’s would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.”

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal Nos.3523 35210 A.R. MADANA GOPAL ETC.ETC M S RAMNATH PUBLICATIONS PVT. LTD. AND ANR. …. Respondentdated 24.01.1994. In addition the Appellants prayed for a direction to the Respondents to deliver vacant possession of the schedule property a decree of permanent injunction restraining the Respondents from alienating or encumbering the suit property and a decree of mandatory injunction to deposit the title deeds with the Court. It was alleged in the plaints that the Respondent entered into separate 1 | P a g e agreements with the Appellants who belong to the same family for sale of property situated at Door No.325 Arcot Road Vadapalani Chennai on 20.03.1991. As per the terms of the agreement the sale was to be concluded within a period of four months. The Respondents would produce the encumbrance certificate much before the execution and registration of the sale deeds. The Respondents should also obtain the income tax clearance certificate under Section 230 A of the Income Tax Act 1961. To comply with the obligation stipulated in the agreement the first Respondent applied to the Income Tax authorities for permission to alienate the property. The Income Tax authorities passed an order for compulsory acquisition of property on 25.06.1991. The Writ Petition filed by the Respondents challenging the order of the Income Tax authority was allowed by the Madras High Court by its judgment dated 21.12.1992. The authorities were directed to reconsider the matter afresh. The Income Tax authorities passed another order on 22.02.1993 directing purchase of the property. The said order was challenged in the High Court and an interim order of injunction was passed on 10.03.1993. The parties were directed to maintain status quo and not to change the nature of the property. In view of the developments after the agreements relating to the orders passed by the Income Tax authorities and the pendency of the Writ 2 | P a g e Petitions challenging those orders the Appellants and the Respondents entered into four separate MOUs on 24.01.1994 The recitals of the MOUs would show that they were in addition and not in substitution of the agreements dated 20.03.1991. It was agreed that the Respondents shall continue to keep the original title deeds until completion of the sale by registration of the sale deeds. The original title deeds would be handed over to the Appellants at the time of registration. It was also recorded in the Memorandum that certain amounts were paid by the Appellants and the balance of the sale price shall be paid to the Respondents at the time of registration of the sale deeds immediately after the disposal of the Writ Petitions in their favour The Writ Petitions filed against the compulsory acquisition by the Income Tax authorities were disposed of on 11.09.1998 The judgment of the learned Single Judge of the High Court allowing the Writ Petitions was challenged by the Income Tax department by way of filing of an appeal. When the Appellants made a demand for execution of sale deeds the Respondents informed them that it can be done only after disposal of the Writ Appeal. Indian Bank filed a suit for recovery of its dues from the Respondents. As the Respondents were not executing the sale deeds in spite of repeated requests the Appellants filed separate suits for specific performance. 3 | P a g e In the written statement filed by the Respondents it was submitted that the MOU dated 22.01.1994 substituted the suit agreements dated 20.03.1991. It was contended on behalf of the Respondents that the suit was time barred. Time was the essence of the agreement dated 20.03.1991 as it was agreed between the parties that the sale should be concluded within a period of four months. Though the Writ Petition filed against the order of the Income Tax Department was allowed in the year 1998 the Appellants maintained silence for more than two years before filing the suits in 2000 which clearly shows that they were neither ready nor willing to perform their part of the agreement. All the four suits were tried together and a learned Single Judge of the High Court decreed the suits on 17.07.2003. The Appellants were directed to deposit the balance sale consideration along with interest at the rate of 12 per cent within eight weeks from the date of decree and upon such deposit the Respondents were directed to execute the sale deeds in favour of the Appellants. Thereafter the Respondents were directed to deliver possession of the property to the Appellants. The Appellants deposited the balance consideration on 01.08.2003. The Respondents filed original suit appeals against the judgment of the learned Single Judge which were allowed by a Division Bench of the High Court on 25.07.2008. The judgment of the Division 4 | P a g e Bench setting aside the decrees passed in favour of the Appellants is the subject matter in the present Appeals. 7. While decreeing the suit filed by the Appellants the learned Single Judge of the High Court expressed his opinion that it cannot be said that the Appellants did not evince any interest in performing their part of the agreement nor can it be said that they did not have sufficient funds. It was further held that the Appellants were always ready and willing to perform their part of the contract by depositing the balance sale consideration. He further observed that the major portion of the sale consideration was already paid. According to the learned Single Judge the suit was filed within a period of three years from the date of the disposal of the Writ Petitions and therefore cannot be said to be barred by limitation. The MOUs dated 24.01.1994 were held to be in addition to the agreements dated 20.03.1991. On the above findings the learned Single Judge decreed the suit. The relief claimed by the Appellants for award of damages was however not granted. The learned Single Judge awarded interest on the balance sale consideration at the rate of 12 per cent. A Division Bench of the High Court set aside the judgment and decree of the learned Single Judge by holding that the Appellants failed to deposit the balance consideration immediately after the disposal of the Writ Petition. Though the Writ Petition 5 | P a g e was disposed of on 11.09.1998 the suits were filed between October to December 2000. No notices were issued by the Appellants seeking execution of sale deeds nor did they purchase the stamp papers. According to the Division Bench the above factors would indicate that the Appellants were not ready and willing to perform their part of the agreement along with the fact that they kept quiet for two years and three months after the disposal of the Writ Petitions. That apart conduct of the Appellants was commented upon by the Division Bench of the High Court to conclude that they are not entitled to the relief of specific performance. The Division Bench found fault with the Appellants for not pleading and proving how they got the possession of a part of the property. The claim of the Appellants for vacant possession of the property was found to be frivolous as the Appellants continued to be in possession of a part of the property. The attempt made by the Appellants to trespass into the ground floor of the property where the Indian Bank was having its office disentitled them from seeking the equitable relief of specific performance. 9. We have heard Mr. Raghavendra S. Srivatsa Advocate for the Appellants and Mr. P.S. Narasimha learned Senior Counsel for the Respondents. The contention of the Appellants is that the agreements and the MOUs have to be read together. It was 6 | P a g e argued on behalf of the Appellants that the sale consideration of all the four agreements for purchase of the property is Rs. 37 lakhs out of which Rs. 34 lakhs was paid by August 1994. Mr Srivatsa submitted that the demand made by the Appellants for execution of the sale deeds was rejected by the Respondents on the ground that the Writ Appeal filed by the Income Tax Department against the judgment of the High Court dated 11.09.1998 was pending. It was only on receipt of information by the Appellants that the property was already encumbered that the Appellants filed suits for specific performance. According to the Appellants it cannot be said that there was any delay in filing the suits. The Appellants were always ready and willing to perform their part of the agreement. The Appellants asserted that the interpretation of the MOU is contrary to well settled law of this Court. The Division Bench of the High Court placed undue emphasis on the word “immediately” to conclude that the Appellants failed to pay the balance consideration immediately after the disposal of the Writ Petition. By placing reliance on the judgments of this Court in State of Bihar v. Tata Iron1 Anglo American Metallurgical Coal Pty Ltd. v. MMTC Ltd.2 and Khardah Company Ltd. v. Raymon & Co.Private Limited3 Mr. Srivatsa submitted that the intention of the parties 17 SCC 99 2 2020 SCC OnLine SC 1030 33 SCR 183 7 | P a g e must be ascertained from the language used in the agreement by reading it as a whole and in the light of the surrounding circumstances. He submitted that the relevant clause in the agreement obligates the Appellants to pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. According to Mr. Srivatsa the High Court ignored the crucial words “at the time of registration of the sale deeds” and committed an error in relying upon the word “immediately” to find that the Appellants were in default. The pendency of the Writ Appeal filed by the Income Tax Department was the reason for the Appellants not taking any steps to file the suits immediately after the disposal of the Writ Petitions. Seeking support from the judgments of this Court in K.S.Vidyanadam and Others v. Vairavan4 and Saradamani Kandappan v. S. Rajalakshmi5 Mr. Srivatsa contended that the Appellants are entitled for the relief of specific performance as they have paid a major portion of the consideration possession in part was handed over to them and the suit was filed within the period of limitation. It was further submitted on behalf of the Appellants that specific performance is no longer a discretionary relief in view of the insertion of Section 10 A in the Specific Relief Act 1963. It was argued that the 43 SCC 1 512 SCC 18 8 | P a g e amendment should be made applicable to all pending proceedings including appeals. 10. Mr. Narasimha learned Senior Counsel for the Respondents contended that time is the essence of the agreements dated 20.03.1991 and the MOUs dated 24.01.1994. Though the Writ Petitions were disposed of on 11.09.1998 the Appellants filed the suit only between October and December 2000. The Appellants had not issued any notices to the Respondents to execute sale deeds after the disposal of the Writ Petitions. The Appellants also did not discharge their obligation of paying balance sale consideration. The delay of two years and three months after the disposal of the Writ Petition is fatal and the Appellants are not entitled for the relief claimed for. It was argued on behalf of the Respondents that the escalation in prices of properties in Chennai is a relevant factor. Mr. Narasimha supported the judgment of the Division Bench of the High Court by arguing that the Appellants were not put in possession of the property at the time of the agreement. There is no covenant in the MOU that the possession shall be given to the Appellants. The Appellants have not explained as to how they got possession of the first floor. The Appellants highhandedly made attempts to disturb the possession of the Indian Bank from a portion of the building. As the First Appellate Court is the last Court on findings of fact this Court 9 | P a g e should refrain from interfering with the judgment of the Division Bench of the High Court. There is no dispute about the agreements dated 20.03.1991 and the MOUs between the parties. It is also a fact that Income Tax Department wanted to compulsorily acquire the property due to which Writ Petitions were filed which were disposed of on 11.09.1998. Writ Appeals filed by the Department were pending on the date of filing of the suit. The relevant clause in the MOU is that the Appellants shall pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words “at the time of registration of sale” in clause 3 of MOUs. A plain reading of clause 3 in the MOU’s would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits The High Court refused to grant relief of specific performance to 10 | P a g e the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract However the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal 11 | P a g e of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination can it be said that the Appellants can be denied relief on this account. Yet another reason given by the 12 | P a g e Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy. 14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However an exception to this rule is where an immovable property is to be sold within a certain period time being of the essence and it is not found that owing to some default on the part of the plaintiff the sale could not take place within the stipulated time. Once a suit for specific performance has been filed any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However it is within the discretion of the Court regard being had to the facts of each case as to whether some additional amount ought or ought not to be 13 | P a g e paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage6. We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance7. We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act 1963 in view of the conclusion that we have reached in favour of the Appellants. For the aforementioned reasons the judgment of the Division Bench of the High Court is set aside and the judgment and decree passed by the learned Single Judge is restored. The Appeals are allowed accordingly. ................................J Ltd. v. P. Gopirathnamand Others 2020 SCC OnLine SC 825 7 Nirmala Anand v. Advent Corpn.Ltd . 8 SCC 146 14 | P a g e

Arrest cannot be restricted when accused does not co-operate with the investigation investigation and does not provide information: High court of Delhi

Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. This cannot be applied when the accused does not co-operate with the investigation and does not provide information which will lead to the discovery of material facts as held by the Hon’ble High Court of Delhi through a learned bench of Hon’ble Mr. Justice Subramonium Prasad in the case of Naresh Juneja Vs State (Govt. Of Nct Of Delhi) [BAIL APPLN. 2022/2021]. Brief facts on record are that the instant FIR was registered on the statement of the prosecutrix wherein she stated that she knew the petitioner. It is stated that she and her husband deal in ready-made garments. It is stated that they have a shop in Gandhi Nagar and the petitioner also owns a shop in Gandhinagar. It is stated that in September, 2019 the petitioner herein invited the prosecutrix for dinner and that the petitioner herein offered her beer and they were driving for some time. It is stated that after a while the petitioner forcefully made physical relations with the prosecutrix and after the incident the petitioner dropped the prosecutrix to her house and showed her obscene photos, that he had clicked on his phone It is stated that the petitioner is threatening the prosecutrix that he will send her obscene pictures to her husband and he is forcing the prosecutrix to meet him and, therefore, the instant FIR was registered. Mr. Sanjay Vashistha, learned counsel for the petitioner, contends that the husband of the prosecutrix was part of the kitty/ Committee run by the petitioner and the petitioner has given a sum of Rs.10,00,000/- to the husband of the prosecutrix. He, therefore, states that the present FIR is only a measure to force the petitioner not to encash the said cheque. Ms. Kusum Dhalla, learned APP for the State, vehemently opposes the instant bail application by contending that the petitioner is accused of a very heinous crime punishable under Section 376 IPC. She states that there are allegations that the petitioner is threatening the prosecutrix. She further states that even after getting protection from this Court, the petitioner is not co-operating with the investigation. The court after hearing both the parties observed that the petitioner was called by the Investigating Officer but he did not come citing some family contingencies and that the petitioner has not been co-operating with the investigation at all. Therefore, while relying on the Judgment in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, the court stated that “No doubt it is well settled that arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. This cannot be applied when the accused does not co-operate with the investigation and does not provide information which will lead to the discovery of material facts. For this purpose, it may be necessary to curtail the freedom of the accused to enable the investigation to proceed without hindrance. The petitioner is accused of a serious offence of rape. The petitioner does not stay in Delhi. The apprehension of the petitioner fleeing from justice cannot be ruled out at this juncture.” Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 05th OCTOBER 2021 IN THE MATTER OF: BAIL APPLN. 2022 2021 NARESH JUNEJA Petitioner Through: Mr. Sanjay Vashistha Advocate. STATEThrough: Ms. Kusum Dhalla APP for the State. Respondent Mr. Salim Malik Advocate for the HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 438 Cr.P.C is for the grant of bail to the petitioner in the event of arrest in FIR No.125 2021 dated 16.05.2021 registered at Police Station Civil Lines for offences under Sections 376 506 Shorn of details the facts leading to the instant bail application are IPC. as under: a) The instant FIR was registered on the statement of the prosecutrix wherein she stated that she knew the petitioner. It is stated that she and her husband deal in ready made garments. It is stated that they have a shop in Gandhi Nagar and the petitioner also owns a shop in Gandhinagar. It is stated that in September 2019 the petitioner herein invited the prosecutrix for dinner and took her to a BAIL APPLN. 2022 2021 restaurant called Boa Village. It is stated that after dinner the prosecutrix went with the petitioner in his car. It is stated that the petitioner herein offered her beer and they were driving for some time. It is stated that after a while the petitioner took the prosecutrix to Bonta Park and parked the car outside the park. It is stated that the petitioner forcefully made physical relations with the prosecutrix. It is stated the prosecutrix could not protest because she was feeling dizzy after consuming beer. It is stated that after the incident the petitioner dropped the prosecutrix to her house and showed her obscene photos that he had clicked on his phone and threatened the prosecutrix that if she told anyone about the incident he would send the pictures to her husband and would circulate them in the market as well. It is stated that in February 2020 the petitioner asked the prosecutrix to meet him again. It is stated that out of fear the prosecutrix went to meet him. It is stated that the petitioner took the prosecutrix to a flat where he again physically forced himself on her. It is stated that thereafter due to lockdown the petitioner and the prosecutrix were not in touch each other. It is stated that in December 2020 the petitioner once again forcefully made physical relations with the prosecutrix. It is stated that the petitioner is threatening the prosecutrix that he will send her obscene pictures to her husband and he is forcing the prosecutrix to meet him and therefore the instant FIR was registered. b) The petitioner filed an application being Bail Application No.1341 2021 before the Sessions Court seeking anticipatory BAIL APPLN. 2022 2021 bail. The learned Additional Session Judge 05 Central District Tis Hazari Courts Delhi considering the gravity of offence and the nature of allegations against the petitioner and considering the fact that threats are being extended to the prosecutrix dismissed the said application vide order dated 07.06.2021. c) The petitioner has thereafter approached this Court by filing the instant application. In the petition it is contended that the petitioner conducts a chit fund business and the husband of the victim was a member of the chit business. It is stated that the husband of the prosecutrix has given a cheque of Rs.10 00 000 to the petitioner. It is contended that the instant FIR was lodged just to put pressure on the petitioner so that he could not encas h the said cheque. A copy of the cheque bearing No.000129 dated 18.05.2021 drawn on Kotak Mahindra Bank and signed by the husband of the prosecutrix is annexed with the petition. Noting the said contention notice was issued by this Court on 14.06.2021 and interim protection was granted to the petitioner. The petitioner was directed to appear before the Investigating Officer and join investigation as and when called for by the Investigating Officer. On 07.07.2021 this Court directed the Investigating Officer to verify whether husband of prosecutrix was a part of any kitty Committee formed by the petitioner and whether any amount was received paid by him and the matter was adjourned to 27.07.2021. Status Report along with the statement given by the prosecutrix under Section 164 Cr.P.C has been filed. Heard Mr. Sanjay Vashistha learned counsel for the petitioner Ms. BAIL APPLN. 2022 2021 Kusum Dhalla learned APP for the State and Mr. Salim Malik learned counsel for the complainant and perused the material on record. 7. Mr. Sanjay Vashistha learned counsel for the petitioner contends that the husband of the prosecutrix was part of the kitty Committee run by the petitioner and the petitioner has given a sum of Rs.10 00 000 to the husband of the prosecutrix. He therefore states that the present FIR is only a measure to force the petitioner not to encash the said cheque. He further states that the allegation of rape dates back to September 2019 however no complaint was filed by the prosecutrix then. He states that the complaint is so timed that it has been filed exactly two days before the date of encashment of cheque given by the husband of the prosecutrix. He therefore states that the instant case is completely false and has been filed with mala fide intent to pressurize the petitioner not to encash the said cheque. 8. Ms. Kusum Dhalla learned APP for the State vehemently opposes the instant bail application by contending that the petitioner is accused of a very heinous crime punishable under Section 376 IPC. She states that there are allegations that the petitioner is threatening the prosecutrix. She further states that even after getting protection from this Court the petitioner is not co operating with investigation. She therefore contends anticipatory bail should not be granted to the petitioner. 9. Mr. Salim Malik learned counsel for the complainant has reiterated contentions raised by the learned APP. He also contends that a cheque book of the husband of the prosecutrix was missing from his office and a missing report had been lodged for the same on 14.04.2021. He states that the cheque bearing No.000129 dated 18.05.2021 drawn on Kotak Mahindra BAIL APPLN. 2022 2021 Bank for an amount of Rs.10 00 000 which has been annexed with the petition has been taken from the missing cheque book. 10. Mr. Sanjay Vashistha learned counsel for the petitioner in the rejoinder states that the petitioner stays at House No. 735 Vasant Avenue Ludhiana Punjab. He states that the petitioner is not given adequate time to join investigation. He states that the petitioner is co operating with the investigation. He states that all the cheques are already in the custody of the 11. The material on record shows that the petitioner was called by the Investigating Officer on 08.07.2021 but he did not come citing some family contingencies and said that he would join the investigation on 09.07.2021. On 09.07.2021 the petitioner told the IO that his car had developed some problem and he would come later. It is stated that the petitioner has not been co operating with the investigation at all. It is stated that he has not submitted the details of kitty Committee as well as his ledger register to the Investigating Officer. The interrogation report of the petitioner has been submitted by the Investigating Officer. A perusal of the interrogation report indicates that when the petitioner was asked about how many members were there in his Committee the petitioner answered that there are about 100 150 members in his Committee. The report also reveals that when the petitioner was asked as to whether he had brought the details records of each member of the Committee the petitioner herein refused to divulge the details of the members. The petitioner herein has also not revealed as to what was the amount due and payable by the husband of the prosecutrix and against what amount the cheques had been given by the husband of the prosecutrix. The material submitted by the State also reveals that other than cheque bearing BAIL APPLN. 2022 2021 No.000129 dated 18.05.2021 drawn on Kotak Mahindra Bank for an amount of Rs.10 00 000 the petitioner has submitted three cheques: a) Cheque bearing No.000126 dated 18.06.2021 drawn on Kotak Mahindra Bank for an amount of Rs.6 00 000 b) Cheque No.000127 dated 18.07.2021 drawn on Kotak Mahindra Bank for an amount of Rs.4 00 000 and c) Cheque No.000131 dated 24.08.2021 drawn on Kotak Mahindra Bank for an amount of Rs.4 58 750 . A perusal of all the cheques would show that Cheque No.000129 is dated 18.05.2021 whereas Cheque No.000126 is dated 18.06.2021 Cheque No.000127 is dated 18.07.2021 and cheque No.000131 is dated 24.08.2021. It is therefore very clear that the cheque numbers do not correspond with the dates of the cheques. 12. As stated earlier a reading of the interrogation report shows that the petitioner has not given any proof as to what is the total amount the husband of the prosecutrix owes him. 13. The parameters for granting anticipatory bail have been succinctly laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra 1 SCC 694 wherein the Supreme Court has observed as under: “112. The following factors and parameters can be into consideration while dealing with anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence BAIL APPLN. 2022 2021 iii) The possibility of the applicant to flee from justice iv) The possibility of the accused s likelihood to repeat similar or other offences v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people vii) 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 overimplication in the cases is a matter of common knowledge and concern viii) 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 the free fair and full investigation and there should be prevention of harassment humiliation and unjustified detention of accused ix) The apprehension of tampering of the witness or apprehension of threat to the complainant x) Frivolity in prosecution should always be considered and 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.” is only 14. No doubt it is well settled that arrest should be the last option and it BAIL APPLN. 2022 2021 should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. This cannot be applied when the accused does not co operate with the investigation and does not provide information which will lead to the discovery of material facts. For this purpose it may be necessary to curtail the freedom of the accused to enable the investigation to proceed without hindrance. The petitioner is accused of a serious offence of rape. The petitioner do es not stay in Delhi. The apprehension of the petitioner fleeing from justice cannot be ruled out at this juncture. Grant of protection from arrest does not give a passport to the accused to not cooperate with the interrogation. 15. The account books of the petitioner have to be seized to ascertain as to whether there is any veracity in the petitioner s submission that the husband of the prosecutrix owes money to him. As stated earlier the cheques are from the same cheque book which allegedly had been missing from the office of the husband of the prosecutrix and the numbers of the cheques do not tally with the dates of the cheques. The prosecutrix has also stated that the petitioner is threatening her. All these facts have to be ascertained for which custodial interrogation of the petitioner is required. 16. As stated earlier when the accused does not co operate with the investigation and shields himself by concealing material information then it becomes imperative not to grant anticipatory bail to the petitioner. In the instant case the petitioner is not co operating with the investigation. The husband of the prosecutrix has filed a complaint stating that his cheque book was missing from his office. The petitioner has to explain as to how he got the cheques and who has filled those cheques. It also has to be ascertained whether the documents submitted by the petitioner BAIL APPLN. 2022 2021 are correct or not. The account books have to be seized to ascertain whether the husband of the prosecutrix owed money to the petitioner or not or is the petitioner raising a false bogey only to avoid arrest. It has also been contended by the learned APP for the State that a new register showing the members of the kitty Committee has been handed over and by no imagination can this register be said to be the correct register. For these purposes the custodial interrogation of the petitioner would be necessary. 18. Furthermore the petitioner is accused of the offence of rape. The petitioner does not stay in Delhi and has not given the correct address. The chances of the petitioner fleeing from justice cannot be ruled out. The prosecutrix has stated that she is being threatened by the petitioner. Looking at the facts of this case this Court is of the opinion that the petitioner is in a position to threaten intimidate the prosecutrix. It is also necessary to ascertain as to whether the petitioner has the photographs of the prosecutrix or not and all the phones of the petitioner have to be checked . In view of the fact that the petitioner is not cooperating with the investigation and recoveries have to made this Court is of the opinion that the custody of the petitioner is required to ensure a free fair and full investigation. In view of the above this Court is not inclined to extend the protection granted to the petitioner on 14.06.2021. 21. Accordingly the bail application is dismissed along with all the pending application(s) if any. OCTOBER 05 2021 Rahul SUBRAMONIUM PRASAD J BAIL APPLN. 2022 2021

POCSO Act has been enacted as a self contained comprehensive legislation interalia to provide for protection of children from the offences of sexual assault and sexual harassment : 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, Jeeshan Ansari V/s State of U.P. and Another [APPLICATION U/S 482 No. – 17844 of 2021] dealt with an issue mentioned above. The Heard Sri M.P. Singh Yadav, holding the brief of Sri Mohammad Waseem, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General along with Sri Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party. The order dated 12.08.2021 dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination-in-chief of PW-2 (victim) was recorded on 21.01.2021 and on the same date the counsel for the accused-applicant had cross-examined her. On the scope of powers to be exercised under Section 311 Cr.P.C., reliance has been placed on the decision of this Court in Ajmer vs. the State of U.P.2, and also a recent decision dated 22.11.2021 in Manish vs. the State of U.P. and another. The facts as noticed by the court below in the order dated 12.08.2021 whereunder the application under Section 311 has been rejected, indicate that the examination-in-chief of the victim PW-2 was recorded on 29.01.2021 and her cross-examination was also completed by the counsel for the accused-applicant on the same date. The court perused the facts and arguments presented The power conferred has been held to be discretionary 10 and is to enable the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection.

Court No. 85 Case : APPLICATION U S 482 No. 178421 Applicant : Jeeshan @ Jeeshan Ansari Opposite Party : State of U.P. and Another Counsel for Applicant : Mohammad Waseem Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri M.P. Singh Yadav holding brief of Sri Mohammad Waseem learned counsel for the applicant and Sri Vinod Kant learned Additional Advocate General along with Sri Arvind Kumar learned Additional Government Advocate appearing for the State opposite party. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 12.08.2021 passed by the Additional Sessions Judge Special JudgeN IPC and Section 3 4 of Protection of Children from Sexual Offences Act 20121 Police Station Hafizganj District Bareilly on the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021 and also to direct the court below to re consider the application filed by the applicant under Section 311 Cr.P.C. dated 10.08.2021 The order dated 12.08.2021 dismissing the application filed by the applicant herein under Section 311 Cr.P.C. has taken notice of the fact that the examination in chief of PW 2 victim) was recorded on 21.01.2021 and on the same date the counsel for the accused applicant had cross examined her. The court has also recorded that the accused applicant has sought recall of the witness who has been already examined on the earlier date as PW 2. It has also been taken note that the cross examination of the other witnesses is continuing and 1 POCSO Act information regarding the questions which are sought to be put to PW 2 can be elicited from the other witnesses. Considering that the matter is pending since the year 2018 an inference has been drawn that the application filed under Section 311 Cr.P.C is only to delay the proceedings. The court below further taking note that the trial is under POCSO Act which contains a provision for concluding the proceedings expeditiously has concluded that there was no reason to allow the application under Section 311 Cr.P.C. seeking recall of the witness and accordingly the same has been rejected. Learned Additional Advocate General supporting the order passed by the court below has pointed out that the testimony of the PW 2 having already been recorded long back and no plausible ground having been made out by the accused applicant for recall of the witness the application under Section 311 Cr.P.C. has rightly been turned down. Learned Additional Advocate General also points out that the POCSO Act is a special Act which contains a specific provision for expeditious disposal of trial. On the scope of powers to be exercised under Section 311 Cr.P.C. reliance has been placed on the decision of this Court in Ajmer vs. State of U.P.2 and also a recent decision dated 22.11.2021 in Manish vs. State of U.P. and another3 The facts as noticed by the court below in the order dated 12.08.2021 whereunder the application under Section 311 has been rejected indicate that the examination in chief of the victim PW 2 was recorded on 29.01.2021 and her cross examination was also completed by the counsel for the accused applicant on the same date. The court below has also noticed that the questions which are proposed to put to the 2 2021ACC 409 3 Application U S 482 No. 234221 decided on 22.11.2021 aforesaid witness as stated in the application under Section 311 have already been put to the witness earlier on behalf of the defence counsel. Further the fact that the cross examination of the other witnesses was still continuing and that the information with regard to the age of the brothers and sisters and other family members of the victim could be elicited from them has also been taken into consideration to draw a conclusion that the application under Section 311 had been filed only with a view to delay the proceedings. Another fact which has been taken note of is that the matter is pending since the year 2018 and the proceedings being under the POCSO Act the same were required to be concluded In this regard it would be relevant to take notice of the fact that the POCSO Act has been enacted as a self contained comprehensive legislation interalia to provide for protection of children from the offences of sexual assault sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting recording of evidence investigation and trial of offences and provision for establishment of Special Court for speedy trial of The relevant provisions of the POCSO Act which shall shortly be referred to are being extracted below: “28. Designation of Special Courts.For the purposes of providing a speedy trial the State Government shall in consultation with the Chief Justice of the High Court by notification in the Official Gazette designate for each district a Court of Session to be a Special Court to try the offences under the Provided that if a Court of Session is notified as a children s court under the Commissions for Protection of Child Rights Act 2005 or a Special Court designated for similar purposes under any other law for the time being in force then such court shall be deemed to be a Special Court under this section 2) While trying an offence under this Act a Special Court shall also try an offence other than the offence referred to in sub section 1)] with which the accused may under the Code of Criminal Procedure 1973 be charged at the same trial 3) The Special Court constituted under this Act notwithstanding anything in the Information Technology Act 2000shall have jurisdiction to try offences under section 67 B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act or conduct or manner or facilitates abuse of children online 33. Procedure and powers of Special Court. A Special Court may take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such 2) The Special Public Prosecutor or as the case may be the counsel appearing for the accused shall while recording the examination in chief cross examination or re examination of the child communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child 3) The Special Court may if it considers necessary permit frequent breaks for the child during the trial 4) The Special Court shall create a child friendly atmosphere by allowing a family member a guardian a friend or a relative in whom the child has trust or confidence to be present in the court 5) The Special Court shall ensure that the child is not called repeatedly to testify in the court 6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial 7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial Provided that for reasons to be recorded in writing the Special Court may permit such disclosure if in its opinion such disclosure is in the interest of the child Explanation. For the purposes of this sub section the identity of the child shall include the identity of the child s family school relatives neighbourhood or any other information by which the identity of the child may be revealed 8) In appropriate cases the Special Court may in addition to the punishment direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child 9) Subject to the provisions of this Act a Special Court shall for the purpose of the trial of any offence under this Act have all the powers of a Court of Session and shall try such offence as if it were a Court of Session and as far as may be in accordance with the procedure specified in the Code of Criminal Procedure 1973(74) for trial before a Court of Session 35. Period for recording of evidence of child and disposal of case. The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay if any shall be recorded by the Special Court 2) The Special Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance of the offence The POCSO Act which is a special enactment contains provisions for designation of Special Courts under Chapter VII and sub sectionof Section 28 provides for designation of a Court of Session to be a Special Court for each district to try the offences under the Act for the purposes of providing a speedy The procedure and powers of Special Courts and recording of evidence is contained under Chapter VIII of the POCSO Act. Section 33empowers the Special Court to take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such Section 35 is with regard to the period for recording of evidence of child and disposal of case and sub section of Section 35 provides that the Special Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance of the offence It would be seen that the POCSO Act has been enacted as a self contained comprehensive legislation to provide for protecting of children from the sexual assault sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating child friendly procedures for reporting recording of evidence investigation and trial of offences and also provision for establishment of Special Courts for speedy trial of such offences. 14. One of the principal objectives of enactment of the POCSO Act as a special Act being for providing a special procedure to ensure speedy trial so as to protect the children in respect of certain specified offences the provisions of the enactment would have to be interpreted in a manner so as to effectuate the object of the enactment and not to frustrate the 15. Having regard to the aforesaid the conclusion drawn by the court below with regard to the application under Section 311 having been filed so as to delay the proceedings cannot be said to be without basis in view of the object of ensuring the speedy trial under the special Act 16. As regards the nature and scope of the power of the court to summon examine recall and re examine any witness in the context of Section 311 Cr.P.C. the said provisionwas subject matter of consideration in Mohanlal Shamji Soni v Union of India and another4 and it was held that the power in this regard is in the widest terms exercisable at any stage so long as the court is in seisin of the proceeding as may be considered essential for a just decision of the case. In U.T. of Dadra and Nagar Haveli v Fatehsinh Mohansinh Chauhan5 while considering the power of the court to summon material witnesses under Section 311 Cr.P.C. it was opined that the said power can be exercised only with the object of finding out the truth or obtaining proper proof of facts which may lead to a just and correct decision. The nature scope and object of Section 311 Cr.P.C. came to be extensively discussed in Zahira Habibullah SheikhACC 409 3 Application u s 482 No. 234221 decided on 22.11.2021

In the absence of material record to show that the injury was grievous in nature. It is trite law that conviction would be for the offence punishable u/s 307 of IPC: High Court of Delhi

In the absence of the doctor who prepared the Medical report and where there is no material on record to show that the injury was grievous in nature. It is trite law that conviction would be for the offence punishable under section 307 IPC. It is also not necessary that the victim should have suffered an injury in a case where the offence was committed with an intention to commit the murder of the victim. These were stated by High Court of Delhi, consisting Justice Mukta Gupta in the case of Gain Chand @Rahul vs. The State Govt. of NCT, Delhi [CRL.A. 38/2021] on 12.01.2022. The facts of the case are that the appellant was convicted for offence punishable under Section 307 IPC whereby he was directed to undergo rigorous imprisonment for a period of 5 years and a fine of ₹10,000/- in default whereof to undergo simple imprisonment for 5 months. As per the case of prosecution, the appellant was living with his wife and the mother-in-law at their house when an altercation took place. It is alleged that the appellant came back intoxicated, went to the kitchen, took the axe and hit the motherin-law and the wife resulting in grievous injury to the mother-in-law and simple injury to the wife. The Counsel for the appellant contended that despite the case of the prosecution being that several eye-witnesses were present, no eye-witness was examined. The circumstances in which the appellant was arrested are also shrouded in mystery for the reason that the two injured victims said that appellant ran away from the place of incident immediately after inflicting the injuries, however, as per the arrest memo, the appellant was arrested from his house. It was submitted that MLC of the appellant was not placed on record which would prove whether the appellant was under the influence of alcohol or not. Further it was submitted that there were material contradictions in the testimony of the two injured victims. One of the two eye-witnesses examined was the brother of the appellant’s wife who stated that he received a call at his office, hence he is not an eyewitness to the incident. In view of the material contradictions in the testimony of the witnesses, the appellant be acquitted of the charge for offence punishable under Section 307 IPC or in the alternative be released on the period already undergone which is more than half the sentence awarded, i.e. 2 years 10 months including remissions. The Counsel for the respondents submitted that PW-2 and PW-3 were the injured witnesses and hence their evidence stands on a higher pedestal and cannot be brushed aside. It was pointed out that PW-4 and PW-6 took the two injured victims to the hospital and hence their presence at the spot cannot be doubted. The Counsel further contended that the plea of alibi taken by the appellant was not proved by him and a quarrel took place as the temple had to be vacated. Even if no grouping could be ascertained, blood was found on the axe which also corroborated the version of the injured victims. It was therefore contended that in view of the serious offence committed by the appellant no case for acquittal or for reduction of sentence can be made out.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 27th October 2021 Decided on: 12th January 2022 CRL.A. 38 2021 GAIN CHAND @ RAHUL Petitioner Represented by: Mr. Samyak Gangwal Adv.for Mr. Gaurav Gupta Adv. THE STATE GOVT. OF NCT DELHI Respondent Represented by: Mr. Ravi Nayak APP for State with SI Ravi Kumar PS Jahangir Puri. HON BLE MS. JUSTICE MUKTA GUPTA By the present appeal the appellant challenges the impugned judgment dated 7th March 2020 whereby the appellant has been convicted for offence punishable under Section 307 IPC and the order on sentence dated 13th August 2020 whereby he has been directed to undergo rigorous imprisonment for a period of 5 years and a fine of ₹10 000 in default whereof to undergo simple imprisonment for 5 months. Learned counsel for the appellant contends that as per the case of prosecution the appellant was living with his wife and the mother in law at their house when an altercation took place. It is alleged that the appellant came back intoxicated went to the kitchen took the axe and hit the mother in law and the wife resulting in grievous injury to the mother in law and CRL.A. 38 2021 simple injury to the wife. The Doctor who wrote the MLC was not examined and hence in view of the decision of this Court reported asSCConline Del 9129 Ramveer Vs. State grievous injury cannot be said to be proved. It is contended that despite the case of the prosecution being that several eye witnesses were present no eye witness was examined. The circumstances in which the appellant was arrested are also shrouded in mystery for the reason case of the two injured victims is that the appellant ran away from the place of incident immediately after inflicting the injuries however as per the arrest memo the appellant was arrested from his house. MLC of the appellant has not been placed on record which would prove whether the appellant was under the influence of alcohol or not. Further there are material contradictions in the testimony of the two injured victims. One of the two eye witnesses examined is the brother of the appellant’s wife who stated that he received a call at his office hence he is not an eye witness to the incident. In view of the material contradictions in the testimony of the witnesses the appellant be acquitted of the charge for offence punishable under Section 307 IPC or in the alternative be released on the period already undergone which is more than half the sentence awarded i.e. 2 years 10 months including remissions. Learned APP for the State submits that PW 2 and PW 3 are the injured witnesses and hence their evidence stands on a higher pedestal and cannot be brushed aside. PW 4 and PW 6 took the two injured victims to the hospital and hence their presence at the spot cannot be doubted. The plea of alibi taken by the appellant was not proved by him. The quarrel took place as the temple was to be vacated. Even if no grouping could be ascertained blood was found on the axe which also corroborates the version CRL.A. 38 2021 of the injured victims. In view of the serious offence committed by the appellant no case for acquittal or for reduction of sentence is made out. FIR No. 527 2014 under Section 307 IPC was registered at PS Jahangir Puri on the complaint of Madhu @ Jyoti the wife of the appellant who was examined before the Court as PW 2. In the FIR and in her deposition before the Court Madhu stated that she was married to the appellant on 28th November 2011 and out of the said wedlock a girl child was born. After 3 days of the marriage the appellant and the complainant started living in her parental house. Appellant was addicted to alcohol and used to quarrel with her often due to which she had filed cases under the Protection of Women from Domestic Violence Act Maintenance and Divorce against him which were pending. On 4th July 2014 she and her mother Smt. Anita who has been examined as PW 3 came back from Allahabad U.P. to Delhi after visiting her ailing maternal grand mother who was admitted in ICU at Allahabad. When they reached the appellant was not at home and came at about 1.30 2.00 PM. When PW 2 asked the appellant as to why he was not doing any work or earning the livelihood the appellant started abusing her and left the house after 10 minutes. At about 3.30 PM the appellant came back under the influence of liquor when her mother Smt. Anita requested the appellant to do some work for earning the livelihood and to bear the family expenses the appellant got angry and started abusing her mother and threatened “Is jhagre ko jadh se khatam kar deta hoon” as both of them insisted the appellant to work and created trouble for him. The appellant went to the kitchen brought one axe kulhadi) and stated “aaj tum dono ko jaan se khatam kar deta hoon”. Thereafter the appellant hit the complainant on neck with the axe but the CRL.A. 38 2021 blow fell on her head. When her mother tried to intervene to save the complainant appellant stated “tumhare ko bhi jaan se maar deta hoon” and hit on the neck of her mother with the axe which blow hit the cheek of the mother. Her mother fell down and the complainant started crying and screaming when her cousin brother Rakesh PW 4 and brother Raj Kumar PW 6 came and on seeing them the appellant ran away from the spot leaving the axe behind. Both PW 4 and PW 6 took both the injured to BJRM hospital for medical examination where rukka on the statement of the complainant was recorded vide Ex.PW 2 A. PW 2 also deposed about the proceedings carried out during the investigation after she was discharged from the hospital on the same day when in her presence blood was lifted from the floor of the house and the axe lying on the ground floor near the sofa was also recovered. The complainant also handed over her blood stained clothes to the Police which were converted into a pulandda vide memo Ex. PW 2 D. The site plan was also prepared at the instance of complainant and the appellant was arrested near Shiv Mandir outside the house of the complainant vide memo Ex.PW 2 F. Statement of Anita mother of the complainant was also recorded under Section 161Cr.P.C. and before Court who supported the version of the complainant in its entirety. Rakesh the cousin brother of the complainant was examined as PW 4 who stated that on 4th July 2014 at about 3.45 PM while he was in his home on hearing the noise he came out and found that people of the locality were talking that his sister was hit with kulhadi axe. He along with Raj Kumar the real brother of the complainant went to the house of the complainant and CRL.A. 38 2021 saw that the complainant was bleeding from her head and saw injury on the left cheek of Smt. Anita mausi of the witness. He stated that the appellant was present and was standing in house holding an axe and on seeing them he ran away. Rakesh along with Raj Kumar the real brother of the complainant took both of them to BJRM hospital in a battery rickshaw and on the way injured told them that accused had caused injury with the axe with the intention to kill them. Raj Kumar PW 6 the brother of the complainant also deposed on the same lines. Raj Kumar who is stated to be not an eye witness as per the appellant deposed before the Court that on 4th July 2014 at around 3.30 PM he returned to his house and saw that a crowd had gathered outside his house. Rakesh son of his Mausi PW 4 had also reached their residence. When they entered the house they saw their sister Madhu bleeding from the head and the mother had a cut mark on her left cheek and was bleeding and lying on the floor. The appellant was also standing in the room with a Kulhadi and his demeanour at the time was that he could hit anybody with the axe. Appellant threatened by saying that “if anybody comes he will kill them”. Thereafter the appellant fled away from the spot and Raj Kumar and Rakesh shifted Anita and Madhu to the hospital going in a battery rickshaw. In his cross examination Raj Kumar admitted that on the day of incident he was in his office. His duty was from 2.00 PM to 11.30 PM and he joined the duty at 2.00 PM. He further stated that he received a telephonic call on his mobile phone from the neighbour about the incident and thus he left the office at about 3.05 PM for his house and reached there at 3.30 PM. He stated that from the inception of the marriage appellant was unemployed and his sister along with the appellant was residing with them. CRL.A. 38 2021 He stated that the place where his mother sister appellant and his niece resided with him was a property belonging to the temple. However there were no CCTV cameras installed in the temple or in the neighbourhood. The daily expenses were met from the offering of the temple and his sister used to do the work of stitching. From the statement of this witness it is evident that he is not an eye witness to the incident but reached home after the incident took place. In his cross examination Rakesh PW 4 cousin of the complainant also stated that at the time of incident he was doing the work of labour at his house and reached the scene of occurrence of crime after hearing the noise. He stated that when he reached the spot many public persons had gathered outside the mandir however none of them entered in the house. He along with his cousin brother i.e. Raj Kumar went inside the house and saw the injured and took them to the hospital in e rickshaw. The fact that the witness entered the place where the incident took place along with Raj Kumar shows that even he did not witness the incident. However the fact that these two witnesses took the injured to the hospital is corroborated by the two MLCs Ex.PW 7 A and PW 7 B which notes that the injured were brought by Raj Kumar. Even if PW 4 and PW 6 are not the eye witnesses the conviction of the appellant can be safely based on the testimony of the two injured witnesses i.e. the complainant and her mother who were examined as PW 2 and PW 3. As noted above there is no contradiction in the testimony of the two injured victims. In his statement under Section 313 Cr.P.C. the appellant took the plea that no such incident had taken place. He stated that he came back to the house at about 6.00 PM and that he was trying his level best to bear the CRL.A. 38 2021 expenses of his family. When he came home his wife and mother in law had already been taken to the hospital and he came to know about the incident from public persons who gathered near the house. He pleaded false implication as he was requesting his wife to shift to a separate accommodation as her mother was creating nuisance in the day to day life of the appellant with his wife in connivance with the brother in law. He further stated that he was apprehended from the hospital where he had gone to see the well being of his wife and mother in law. The appellant led no defence evidence. 12. As per the arrest memo the appellant was not arrested from H.No. G 266 Jahangir Puri but from near the Shiv Mandir place i.e. the residence at 9.15 PM on 4th July 2014 and the arrest memo was duly witnessed by his wife PW 2 whose statement was recorded at the hospital itself based whereon FIR was registered thus leaving no scope of manipulation for false implication. 13. To prove the MLC of Anita and Madhu vide Ex.PW 7 A and PW 7 B respectively Dr. Deepak appeared in the witness box who identified the hand writing of Dr. Santosh who had prepared the two MLCs and had left the services at the time of examination of the witnesses. As per the MLC Ex.PW 7 A the injured Anita received grievous injury whereas Jyoti @ Madhu received simple injury as per MLC Ex.PW 7 B. In the MLC of Anita X ray had been recommended however the report of the X ray has not been placed on record. Further the patient was also referred to Sr. Residentin view of the incised injury of 10 x 3 x 3 cm over the face from the left cheek extending upto the left ear with exposed muscles and bleeding. From this injury itself it is evident that there was a permanent CRL.A. 38 2021 report. disfiguration of the face of the victim leaving a scar thereon and thus the same would fall within the definition of grievous hurt under Section 320 IPC even if the prosecution has not proved fracture on the basis of bony X ray 14. Learned counsel for the appellant has relied upon the decision of this Court in Ramveer vs. State wherein this Court held that in the absence of the doctor who prepared the MLC there was no material on record to show that the injury was grievous in nature. It is trite law that for conviction for offence punishable under Section 307 IPC it is not necessary that the victim should suffer an injury and in a case where the offence is committed with an intention to commit the murder of the victim Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim. In the present case the appellant has used the axe with which he inflicted injury on the victim Anita on the vital part of the body i.e. the face. Considering the weapon of offence and the vital part of the body where injury is inflicted the intention of the appellant to commit murder is evident. 15. Considering the nature of weapon used that the injuries were inflicted on vital part of the body and the evidence of the two injured victims this Court finds that the prosecution has proved beyond reasonable doubt that the appellant has committed the offence punishable under Section 307 IPC. Hence no case is made out for interference with the impugned judgment of conviction. As regards the sentence the appellant has been awarded 5 years rigorous imprisonment and in view of the nature of injuries caused including grievous injury to Anita on cheek with axe this Court also does not find it to be a fit case to release the appellant on the period already undergone. CRL.A. 38 2021 16. Appeal is accordingly dismissed. 17. Order be uploaded on the website of this Court. MUKTA GUPTA) JANUARY 12 2022 CRL.A. 38 2021

Victim of an assault is the best judge of the incident: Calcutta High Court

Victim of assault is the best judge of the incident in a case involving sexual assault by stepfather who was earlier convicted by trial court under section 354 and 325 of IPC and section 8 of POSCO Act.This ruling is provided by Calcutta High Court consisting of Justice Bibek Chaudhuri, learned single judge in the matter of Prabir Bhuiyan alias Prabir Bhuinyan v. The State of West Bengal in CRA 517 of 2017 decided on 16.12.2021. The facts of this case are that the mother of the victim remarried the appellant after her first husband passed away in an accident, leaving her with two children, a boy and a girl.The elder girl child is the victim in this case. After her second marriage, the mother started staying with the appellant along with her children.In 2014, there were instances when the appellant inappropriately touched the sensitive parts of the victim’s body during midnight and forcibly resisting her to sleep with her mother and sleeping with her instead with his hands on her body.Both the incident lead to quarrel between the spouses and the appellant ended up beating the mother brutally.On 6th December 2014, the appellant forcibly tried to enter the adjacent locked room where the victim was sleeping.He repeatedly called her to enter the roon but to no avail. Later,he started to physically assault the mother when she denied to aid him in entering the room.This led to loud noises which compelled the victim to open the door.The appellant proceeded towards the victim but the mother somehow managed to enter the room and locked it again from inside to prevent him from entering.An FIR was filed the next day.The learned special judge of the trial court convicted the appellant of the same and sentenced him to imprisonment of five years with fine along with a default clause.This order of conviction is under challenge in this case. The counsel on behalf of the appellant contended that no inappropriate touch to the victim took place and no arguments or fights ensued between them regarding it ever.All these instances complained of only involved hugs and touch out of  “paternal love and affection shown by the appellant to the daughter” of the mother.There were also material contradictions provided by the statements and evidences of the mother and victim.All the accusations are mere embellishments and exaggerations to implicate the appellant. Prabir_Bhuian_v_State_of_WB CHCThe counsel on behalf of the De-facto Complainant contended that section 33 of the POSCO Act provides for compensation to a child who is a victim of any physical or mental trauma experienced by her and the trial court did offer the same.He contended that the amount of compensation being only rupees five thousand is not proportionate to the mental trauma The Calcutta High Court held that there will naturally be certain discrepancies in the evidence provided by the minor girl child victim.But it is important to consider the instance of sexual assault on minor from the victim’s perspective as the victim is the best judge of the incident.The judgement authored by learned single commences as “Sexual perversity is not only a personal disease, but also a social menace. The act itself is not merely a solitary harrowing experience of the victim. The trauma and the ensuing stigmatization pervades every aspect of her social life. The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather.” This case also issued 11 news additions to  guidelines provided in cases discussed within the judgement, which are Ravishankar Alias Baba Vishwakarma vs. State of Madhya Pradesh reported in (2019) 9 SCC 689, Lalit Yadav vs. State of Chhattisgarh (2018) 7 SCC 499 and Nipun Saxena & Another vs. Union of India & Others reported in (2019) 2 SCC 703.These guidelines are for the effective compliance of Section 33(7) of the POCSO Act:- iii. In the column of witnesses in the charge-sheet the victim girl shall not be referred to by her name but as “victim.” vii. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the learned Magistrate in separate page shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelop, if necessary during trial. viii. In the deposition sheet of the victim girl, the learned Special Judge shall not record the name of the victim. He/she shall be identified as “victim” in the deposition sheet.

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI Prabir Bhuian Alias Prabir Bhuinyan CRA 5117 Vs The State of West Bengal For the appellant: Mr. Abhijit Basu Adv. Mr.J.N. Pal Adv. Mr. Arghya Kamal Das Adv. For the Respondent de facto complainant: For the State: Mr. Sukanta Chakraborty Adv. Mr. Zuber Ahmed Adv. Mr. Anindya Halder Adv. Mr. Ranabir Roy Chowdhury Adv. Mr. Mirza Firoj Ahmed Begg Adv. Heard on: December 09 2021. Judgment on: December 16 2021. BIBEK CHAUDHURI J. : Sexual perversity is not only a personal disease but also a social menace. The act itself is not merely a solitary harrowing experience of the victim. The trauma and the ensuing stigmatization pervades every aspect of her social life. The effect of trauma and insecurity in the mind of the victim are more pervading when she is sexually harassed and assaulted by her stepfather. The defacto complainant lost her first husband in an accident. While she was staying with her two children the elder one a girl child and younger one is a boy she had an acquaintance with one Prabir Bhuia the appellant herein. In course of time the appellant and the defacto complainant developed a love relations his and she married to the appellant for the second time. After marriage she started staying with the appellant with her children from her first marriage. Sometimes during Durga Puja days in 2014 her daughter told her that during midnight when everybody was sleeping the appellant touched several sensitive parts of her body inappropriately. Hearing this a hot altercation ensued between the defacto complainant and the appellant and during such altercation she was severely beaten by the appellant. However the matter was solved when the appellant had sought for apology. On 29th November 2014 the defacto complainant noticed that her husband was sleeping on the adjacent room where her daughter used to sleep by the side of her daughter keeping his hand on her body. She asked her daughter about the incident when she told that she wanted to sleep with her mother but the appellant forcibly seized her and resisted her from going to the bed of her mother. Over the said incident there was quarrel between the defacto complainant and her husband for a week. Again on 6th December 2014 the appellant knocked at the door of the room of the daughter of the defacto complainant where she was sleeping. The daughter of the defacto complainant used to sleep in the said adjacent room closing the door from the inside on being directed by the defacto complainant. He also called the daughter of the defacto complainant over phone repeatedly. Then he tried to take the mobile phone of his wife from below of her pillow. When she resisted the appellant assaulted her severely. Defacto complainant raised hue and cry and hearing her cry the daughter of the defacto complainant opened the door and came out of her room. The appellant was about to proceed towards her. The defacto complainant somehow entered into the room of her daughter and closed the door from inside. On the basis of the said complaint police registered Uttar Para P.S Case No.4214 dated 7th December 2014 under Section 7 and 12 of the POCSO Act and took up the case for investigation. On completion of investigation police submitted charge sheet against the appellant before the learned Special Judge under POCSO Act Hooghly. The learned Special Judge on perusal of the charge sheet and other related documents frame charged against the appellant under Section 354 and Section 325 of the Indian Penal Code and Section 8 of the Protection of Children From Sexual Offences Act. As the accused pleaded not guilty trial of the case commenced. During trial prosecution examined seven witnesses. Amongst them PW1 is the daughter of the defacto complainant. PW2 is the learned Judicial Magistrate 3rd Court at Srirampur who recorded the statement of the victim girl and the defacto complainant under Section 164 of the Code of Criminal Procedure. PW3 is the defacto complainant and PW6 and PW7 are the Police Officers. PW4 Debasish Pal and PW5 Sailen Pal are the residents of 20 B.B Street Bhadrakali. They were cited as witnesses on behalf of the prosecution but during their evidence they did not support the prosecution case and were declared hostile. The learned Special Judge under POCSO Act convicted the appellant for committing offence under Section 8 of the POCSO Act and sentenced to suffer imprisonment for five years with fine and default clause. The said judgment and order of conviction and sentence dated 7th July 2017 is under challenge in the instant appeal. At the very beginning of the hearing of the instant appeal a question arose if the defacto complainant or the victim is a necessary party to an appeal under Section 374 from conviction. The above question is conclusively decided by the Division Bench of this Court proceeded over by the Hon’ble Chief Justice Thottathil B. Radhakrishnanin CRA 2220 with CRA 221 in the judgment dated 6th April 2021. It is held in the aforesaid judgment that the victim is not a necessary party to a criminal appeal from conviction for offences against women or child punishable under the provision of IPC or POCSO Act or any other penal provision which will apply in relation to offence affecting human body against any “woman” and or “child”. No such appeal would be defective in the absence of impleadment of victim. It is submitted by Mr. Basu learned Advocate for the appellant that in the instant case apart from the victim girl and her mother being the defacto complainant nobody supported the prosecution case. The evidence of both the victim girl and her mother is full of material contradictions and their evidence cannot be relied upon in order to hold the appellant guilty under Section 8 of the POCSO Act. In order to substantiate his argument learned Advocate for the appellant refers in detail the evidence of PW1 PW3 and PW7 who is the Investigating Officer of this case. 12. PW1 the victim of the alleged incident stated in her evidence that at the relevant period of occurrence she used to reside at premises No.20 BB Street Hindmotor with her mother younger brother and stepfather Prabir Bhuia appellant herein. Initially the appellant was very cordial to her and she used to behave well with her but after registration of marriage between the appellant and her mother attitude of the appellant towards her gradually started changing. The appellant on different pleas used to touch various parts of her body including breast face and other parts. She did not like such attitude of the appellant. One day in the month of August she and her brother were sleeping in the room with her parents. Sometimes in the midnight she felt that someone was touching her body. She woke up from sleep and saw that her father was about to touch her breast. She removed his hand and got up from the bed. Her mother and brother were in deep sleep at that time. Subsequently also he touched various parts of her body and asked her not to tell such fact to her mother. When she found that all such inappropriate act and behaviour of her stepfather was continuing she disclosed the incident to her mother. A quarrel broke out between them and her mother instructed her to sleep in another room closing the door. On the immersion day of Durga Puja of 2014 the appellant assaulted the defacto complainant over the said issue and there was furious quarrel between them. Since then the victim started to sleep in her room opening the door. On 29th November 2014 at midnight she suddenly woke up from her sleep and found her stepfather sleeping beside her. He hugged her like a side pillow and touched her hip. She tried to leave the bed to go to her mother but the appellant restrained her by pressing her against bed. Then she raised an alarm which attracted her mother. She rushed to her room and there was a quarrel between mother and the appellant. Her mother again instructed her to sleep in her room closing the door from inside and not to open the door until she was called by her mother over phone. In her statement recorded under Section 164 of the Code of Criminal Procedure she stated that her stepfather used to touch different parts of the body inappropriate and indecent manner since quite some days before Puja Vacation. She informed the matter to her mother and the appellant stopped touching her indecently for some time. However one day at midnight she suddenly woke up from sleep and found her stepfather lying beside her and keeping one hand on her back. She tried to leave and go to her mother but the appellant forced her to lie down by his side. In the mean time her mother came to the room made her free from the clutches of the appellant. Her mother instructed her to sleep in her room closing the door and not to open the door before receiving call from her mother. Some days after at night she woke up from her sleep and saw that her stepfather was assaulting her mother severely. Her mother somehow saved herself and took shelter in her room. Then the appellant called her over phone repeatedly but she did not open the door. It is submitted by the learned Advocate for the appellant that in her statement recorded under Section 164 of the Code of Criminal Procedure the victim stated that since sometime before the Puja holidays her stepfather used to touch her inappropriately at various places of her body and when she informed the matter to her mother it was discontinued for few days. In her evidence recorded on 29th September 2015 the victim girl stated on oath that initially her stepfather used to behave with her in proper manner. However after registration of marriage between the appellant and her mother there was a change in behaviour of his stepfather. The appellant on different pleas used to touch the various parts of her body including breast face and other parts she did not like such specific act of the accused. 15. The learned Advocate for the appellant next refers to the evidence of PW7 who is the Investigating Officer of the case. From his cross examination it is ascertained that the victim girl did not state her that after registration of marriage with her mother there was a change in the behaviour of the appellant. In course of evidence the Investigating Officer stated that the victim girl did not state before him that one day in the month of August 2014 when she was sleeping with her brother in the room of her parents she felt that somebody was touching her body and she woke up and found that the appellant was about to touch her breast but she removed his hand and got up from the bed. She also did not state to the Investigating Officer that even afterwards he used to touch the various parts of her body and asked her not to tell such indents to her mother. However she disclosed the incident to her mother and as per her instruction she started sleeping in her room closing the door. She also did not state to the I.O that on 29th November 2014 in the midnight she suddenly woke up from her sleep and found her father was sleeping beside her and he hugged her like a side pillow touching her hip. She also did not state the said fact to the learned Judicial Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure. 16. Thus according to the learned Counsel for the appellant the victim went on gradually developing her case to implicate the accused appellant in an offence under the POCSO Act. Such exaggeration embellishment and development of the prosecution case during the evidence amounts to material contradiction and the learned trial judge failed to consider such contradictions to discard the evidence of PW1. It is further submitted by the learned Advocate for the appellant that in the FIR the defacto complainant stated that during Durga Puja days her daughter told her that sometimes at midnight the appellant touched several sensitive parts of her body in order to arose his sexual last. The second incident allegedly took place on 29th November 2014. On that date at night the defacto complainant found her husband lying by the side of her daughter in her room. Her daughter also told her that the appellant touched numerous parts of her body. Last incident allegedly happened on 6th December 2014 at night when the appellant knocked repeatedly at the door of the defacto complainant’s daughter’s room. He also took away her mobile phone lying under her pillow to call the victim. The defacto complainant resisted her from making any phone call to her daughter from her mobile phone. At this the appellant physically assaulted the defacto complainant. The defacto complainant then took shelter in the room of her daughter and closed the door from inside. In her evidence in chief the victim girl stated that on the immersion day of Durga Puja of 2014 her father assaulted her mother during a quarrel which broke out between them as he touched various parts of her body. With regard to the incident dated 29th November 2014 it was stated by the victim that she suddenly woke up from sleep at midnight and found that his father was sleeping beside her. He hugged her like the side pillow and touched her hip. She tried to call her mother but the appellant restrained her by pressing her on the bed. She raised alarm which attracted her mother and then quarrel between them and the appellant left the room. She was absolutely silent with regard to the incident which allegedly took place on 6th December 2014. It is argued by the learned Advocate for the appellant that the victim girl tried to give sexual colour to the incident dated 29th November 2014. A father can lovingly touch the back of his daughter. He can sleep beside his daughter. He also can hug her. All these are instances of paternal love and affection shown by the appellant to the daughter of the defacto complainant. It is submitted by the learned Advocate for the appellant that in spite of the contradictions if the evidence of the victim and her mother is believed the only allegation against the accused is that he touched the victim who is her stepfather and patted on her back. As per Webster’s Dictionary the word “back” means rear part of human body especially from the neck to the end of the spine. If a father pats the back of his child he cannot be held to be guilty for committing offence under Section 8 of the POCSO Act. In a criminal trial the previous statement of a witness can be used by the accused for the limited purpose mentioned in Section 162 of the Code of Criminal Procedure as provided for in Section 145 of the Evidence Act. Therefore on a reading of Section 162 of the Code of Criminal Procedure bearing in mind the object of the said section and Section 145 of the Evidence Act it is clear that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross examiner to use any former statement of the witness but it cautions that if it intended to “contradict” the witness the cross examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code of Criminal Procedure also permits the cross examiner to use the previous statement of the witnessfor the only limited purpose i.e. to “contradict” the witness. It will not be out of place to mention that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of human conduct would be that while narrating the particular incident there may occur minor discrepancies such discrepancies may render credential to the depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and the environment in which such witness was making the statement. In the instant case the statement of the victim girl in all stages of investigation and trial was consistent on one aspect that the appellant being his stepfather used to touch inappropriately different parts of her body. The mother of the defacto complainant in the FIR stated that the appellant used to touch sensitive parts of her body. The victim in her evidence stated that the appellant tired to touch her breast and other parts of the body. There may be some discrepancy with regard to description of the parts of body where she had experienced indecent touch of the appellant but she is consistent in her evidence that the appellant touched her body inappropriately and on another occasion he surreptitiously slept by the side of the victim and touched her back 22. Long argument was made by the learned Advocate for the appellant to impress upon this Court that father’s touch of his daughter does not amount to sexual harassment. It is not for the court to impose its opinion at the time of appreciation of evidence of a case of sexual abuse. The court must always be alive to consider the incident of sexual act from victim’s perspective. Every child in inheres an inept cognitive capacity which is revised reoriented and bolstered by acquired socio cultural influences familial sermans and scholastic education to discern a touch of love or affection from a vile act of indecency or abuse. The victim is the best judge of the incident. If she states that she was subjected to inappropriate touch by her stepfather the court shall have to accept her feeling. In order to apprise the cases under the POCSO Act the robustness of masculine judicial system must give way to the feminine feeling of the embodiment of lady Justice. 23. Thus though there are minor discrepancies in the evidence of the victim such discrepancies cannot be held to be material contradictions affect the credit of the witness. The evidence of the victim was corroborated by her mother defacto complainant. The victim stated in most clear terms that her stepfather used to touch her different parts of body inappropriately. This Court has no reason to disbelieve the evidence of the victim and her mother. 24. The fact that even after the incident the appellant took the victim to various schools for collecting admission forms for class XI does not matter most because the victim was allowed to go with the appellant being accompanied by her brother. This is the most unfortunate part of the story when a little brother was engaged in the act of policing to prevent their stepfather from committing any indecent act upon the victim. 25. Now it is for the court to decide as to whether the specific act of accused amounts to an offence of sexual assault within the meaning of Section 7 of the POCSO Act. Section 7 defines sexual assault in the following words: “Whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” In the instant appeal it is important to consider the meaning of the words “thus can any other act with sexual intent which involves physical contact without penetration”. It is already observed here in before that whether a specific act amounts to an offence of sexual assault or not is a question of fact to be determined from victim’s point of view. A girl attaining the age of 15 16 years only understands whether any touch on her body is appropriate or inappropriate act. She can only understand whether a person touches her with sexual intent or not. In the instant case the victim girl more than once stated that her stepfather touched different parts of her body inappropriately. On one occasion during her sleep she woke up and found that her stepfather was trying to touch her breast and she removed the hand of the appellant. 27. The appellant denied the allegations made against him by the victim girl. On the other hand he tired to prove that the mother of the victim girl i.e. the defacto complainant is a lady of questionable character. On close scrutiny of the entire evidence on record this court is of the view that the prosecution was able charge against accused appellant beyond any shadow of reasonable doubt. 28. When foundational fact in an offence under the POCSO Act is prove burden of proofing the contrary shifts upon the accused which he failed to discharge under Section 29 of the POCSO Act. At the same time it is open for the court to raise presumption of culpable mental state of the appellant while committing such offence. 29. For the reasons stated above this Court does not find any infirmity in the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge 2nd Court at Hooghly in ST No.17 15 and SCNo.109 14of Section 33 of the POCSO Act empowers Special Court to pass an order directing payment of compensation to the child for any physical or mental trauma experienced by her or for immediate rehabilitation of such child in appropriate cases. In the impugned judgment the learned trial judge directed to pay the find imposed upon the appellant towards her compensation. According to Mr. Chatterjee the said amount of Rs.5000 if at all released and paid to the victim the said amount is not proportionate to the mental trauma which the victim suffered in the hand of the accused. It is needless to say that the Special Court is empowered to pass an order of compensation inappropriate cases. Compensation is paid to a victim who have suffered loss or injury as a result of the crime and requires rehabilitation. In the instant case the victim did not suffer any physical injury for which enhanced compensation is required to be paid. She also does not require any compensation for rehabilitation. Therefore I do not find any reason to pass an order of enhanced compensation in favour of the victim. 32. So for as the conviction and sentence under Section 323 of the Indian Penal Code the learned Advocate for the appellant has not made any submission whatsoever. From the evidence of the defacto complainant and the victim it is clear that the defacto complainant was subjected to physical assault by the appellant on various occasions. 33. Thus considering entire facts and circumstances of the case I do not find any reason to interfere with the findings made by the learned trial judge in the instant appeal. 34. The appeal is therefore dismissed on contest. 35. The judgment and order of conviction and sentence is affirmed. 36. Before I part with I am constrained to state a very disturbing feature on record which is inconsistent with the statute and series of judgments delivered by the Hon’ble Supreme Court. Sub Section of Section 37 of the POCSO Act states: “The Special Court was ensure that the identity of the child is not disclosed at any time during the course of investigation or trial: Provided that for reasons to be recorded in writing the special court may permit such disclosure if in its opinion such disclosure is in the interest of child.” In Nipun Saxena & Another vs. Union of India & Others reported in2 SCC 703 the Hon’ble Supreme Court observed as hereunder in Paragraph 9 to 12. “9. Sub section of Section 228A provides that any person who makes known the name and identity of a person who is an alleged victim of an offence falling under Sections 376 376 A 376 AB 376 B 376 C 376 D 376 DA. 376 DB or 376 E commits a criminal offence and shall be punishable for a term which may extend to two years. 10. What is however permitted under subsectionof Section 228 A IPC is making known the identity of the victim by printing or publication under certain circumstances described therein. Any person who publishes any matter in relation to the proceedings before a Court with respect to such an offence without the permission of the Court commits an offence. The Explanation however provides that printing or publication of the judgment of the High Courts or the Supreme Court will not amount to any offence within the meaning of the IPC. 11. Neither the IPC nor the CrPC define the phrase ‘identity of any person’. Section 228 A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the 12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and therefore the need is much greater to protect the victim and hide her identity. In this regard we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case which made the headlines recently though the name of the victim was not given it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives her neighbours the name of the village etc. is clearly visible. This also amounts to disclosing the identity of the victim. We therefore hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.” 38. The finally in Paragraph 50.1 the Hon’ble Supreme Court was pleased to direct “No person can print or publish in print electronic social media etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at In Lalit Yadav vs. State of Chhattisgarh :7 SCC 499 the Hon’ble Supreme Court held as follows: 2. We however notice from the judgments of both the trial court and the High Court that the victim in the present case who was examined as PW2 has been named all through. Such a course is not consistent with Section 228 A IPC though the explanation makes an exception in favour of the judgments of the superior court. Nonetheless every attempt should be made by all the courts not to disclose the identity of the victim in terms of said Section 228 A IPC. It has been so laid down by this Court in State of Punjab v. Ramdev Singh . 3. While dismissing the present matter we direct the Registry of the High Court to place the record of the appeal in the High Court before the learned Judge for causing appropriate changes in the record including passing appropriate practice directions so that the trial courts in the State comply with the mandate and spirit of Section 228 A IPC. 40. Subsequently in Ravishankar Alias Baba Vishwakarma vs. State of Madhya Pradesh reported in9 SCC 689 the Hon’ble Supreme Court was pleased to hold that the mandate of not disclosing identities of the victims of sexual offences should be followed by al courts including the Supreme Court. Keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228 A has been enacted it would be appropriate that in the judgments be it of High Court or lower Court the name of the victim should not be indicated. We have chosen to describe her as victim in the 41. Section 33(7) of the POCSO Act not only directs the Special Court to ensure that the identity of the child is not disclosed in print electronic social media etc but also at any time during the course of investigation or trial. Thus it is the duty of the Special Court under the POCSO Act to see that the name of the victim is never disclosed in course of investigation and if the same is disclosed it is his statutory duty to stop such disclosure. 42. Unfortunately enough the name of the victim is disclosed by the defacto complainant in the written complaint. In the formal FIR her name is recorded in the relevant column where brief fact of the case is recorded by the Police Officer. During investigation her name is often recorded in her statements under Section 161 of the Code of Criminal Procedure and even under Section 164 of the Code recoded by the learned Judicial Magistrate. All such documents are supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure. During trial victim’s name is recorded on the deposition sheet. She is asked to put her signature on her deposition after the same being recorded. The copies of the said statements received by the accused in compliance of Section 207 of the Code of Criminal Procedure are transferred from hand to hand to the learned Advocate for the accused the law clerks and others. The name of the victim is also recorded by the Medical Officer in his Medical Examination Report. During trial the witnesses including the parents of the child unknowingly state the name of the victim and the trial court records such deposition without adhering to the dictum of Section 33(7) of the POCSO Act. While recording the evidence of the victim her name is recorded on the deposition sheet and her signature or LTI is taken thereon. The certified copies of all such evidence is available not only to the accused but also to others on filing of an application and payment of requisite fees. Therefore in spite of statutory protections and several guidelines of the Hon’ble Supreme Court victim’s name is not kept concealed. Finally all the documents copies of evidence and exhibits are collated in the paper book of criminal appeal and while preparing such paper book the name of the victim is made public to the employees of the court the learned Advocates for the parties and others. 43. Therefore in addition to solemn guidelines of the Hon’ble Supreme Court in the aforementioned cases this Court is of the view that the following guidelines are to be issued for effective compliance of Section 33(7) of the POCSO Act: The Officer in Charge of every police station shall ensure that in the written complaint the name of the victim girl shall not be stated. The victim girl shall be identified by her age her father’s name and other particulars sufficient to identify the victim during investigation without disclosing her name. In the formal FIR and charge sheet the name of victim girl shall not be stated by the Investigating Officer. On the other hand she shall be described as “victim”. In the column of witnesses in the charge sheet the victim girl shall not be referred to by her name but as “victim.” In her statement recorded under Section 161 of the Code of Criminal Procedure the Investigating Officer shall not record the name of the victim. The said statement shall be referred to as “statement of the victim”. Similarly while recording the statement of the victim under Section 164 of the Code of Criminal Procedure the learned Judicial Magistrate shall not record her name. On the other hand she shall record the statement as “the statement of the In order to identify the victim she shall take help of the parents of the victim. He shall also endorse such identification of the victim by her parents at the top of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure. The Judicial Magistrate shall obtain the signature or LTI of the victim on a separate page after her statement is read over and explained to the victim by him. The signature of the victim along with the certificate of the learned Magistrate in separate page shall be kept separately in a sealed cover and the learned Special Judge shall be entitled to open the said sealed envelop if necessary during trial. In the deposition sheet of the victim girl the learned Special Judge shall not record the name of the victim. He she shall be identified as “victim” in the deposition sheet. The signature of the victim witness in her deposition shall be taken by the learned Special Judge in a separate sheet and the said sheet of paper with signature and certificate by the learned Special Judge shall be kept in the record in sealed envelop. The Appellate Court shall open the envelop case of the identity of the victim girl being made an issue. In the judgment the name of the victim girl shall never be stated or recorded by the learned Special Judge. 23 The Medical Officer shall not record the name of the victim girl in the Medical Examination Document. On the other hand the victim girl shall be identified as the “victim” in Medical Examination Report. Similarly in forensic report victim’s identity by taking her name is prohibited. 44. A copy of this judgment containing the above guidelines be sent to the Director General of Police Government of West Bengal Commissioner of Police Calcutta and other Commissionerate in the State of West Bengal Secretary to the Government of West Bengal Department of Health and Family Welfare Secretary Department of Women and Child Welfare government of West Bengal learned Sessions Judges in the State of West Bengal Learned Special Judges under the POCSO Act for their information compliance and adherence of the above guidelines forthwith. 45. The learned Registrar High Court Appellate Side Calcutta shall circulate the copies of this decision to the above named authorities at the earliest. Bibek Chaudhuri J.)

Suspension directives that are not reviewed within 90 days and for which no show cause notification has been given should be set aside and quashed: Gauhati High Court

Orders of suspension that are not checked within 90 days and for which no show cause notification has been released are set aside and quashed, the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed. The judgment was passed by the High Court of Gauhati in the case of Shri Ajit Sonowal vs The State of Assam and 4 Ors. [WP(C)/853/2020] by Single Bench consisting of Hon’ble Shri Justice Sanjay Kumar Medhi. The facts of the case are the petitioner was working as an Accounts Officer in the office of the Executive Engineer. He was arrested in connection with ACB PS under Section 7(a) of the Prevention of Corruption Act, 1988. Accordingly, he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding has been initiated against him and no review of the suspension has been done. The learned counsel for the petitioners has contended that the issue is no longer res Integra in view of the categorical determination of the issue by a Division Bench of this Hon’ble Court in the case of Rekibuddin Ahmed Vs. The state of Assam, It was contended that the Division Bench was answering a reference on the point – “Whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application.” Learned Standing Counsel on the other hand. had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmed may not be the correct interpretation, this Court apart from disagreeing with such contention, also left with no scope to take a different view than the Larger Bench. The Court while relying on the case of Rekibuddin Ahmed Vs. The state of Assam, wherein, it was held that “the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons.” Further, to tune with the observation of the Division Bench, Court hastened to add that the respective Departments would be at liberty to transfer the petitioners in any non-sensitive posts.

Page No.# 1 14 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 853 2020 NIPU KALITA S O LT. JOGEN KALITA SIVA SHAKTI ENCLAVE P.S. HATIGAON DIST. KAMRUP ASSAM THE STATE OF ASSAM AND 4 ORS. REP. BY THE PRINCIPAL SECY. TO THE HOME AND POLITICAL DEPTT. GOVT. OF ASSAM DISPUR GHY. 06 2:THE SECY. TO THE GOVT. OF ASSAM HOMEDEPTT GHY. 06 3:THE SECY. TO THE HOME AND POLITICAL DEPTT GOVT. OF ASSAM GHY. 06 4:THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GHY. 7 5:DY. COMMISSIONER OF POLICE EAST POLICE GUWAHATI 06 Page No.# 2 14 Advocate for the Petitioner : MR I RAFIQUE Advocate for the Respondent : GA ASSAM S O LT. GAGAN SONOWAL R VILL. KADAM KACHARI P.O. CHARAI MORIA P.S. BOGINADI DIST. LAKHIMPUR PIN 787032 THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI 781006 2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM FINANCEDEPTT. DISPUR GUWAHATI 6 3:THE ACCOUNTANT GENERAL GUWAHATI 29 4:THE EXECUTIVE ENGINEER PHE DIVISION NORTH LAKHIMPUR 5:THE DEPUTY COMMISSIONER Advocate for : MR. L N DIHINGIA Advocate for : SC P H E appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 3 14 SHRAWAN KR JHA S O LT. SURENDRA JHA R O KALIBARI RAILWAY COLONY QRT.NO. DS 11H P.S. LATASIL DIST KAMRUP METRO THE STATE OF ASSAM AND 4 ORS REP. BY THE PRINCIPAL SECRETARY TO THE HOME AND POLITICAL GOVT. OF ASSAM GHY 6 2:THE SECRETARY TO THE GOVT. OF ASSAM HOMEDEPARTMENT GHY 06 3:THE SECRETARY HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM GHY 6 4:THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GHY 07 5:THE SUPERINTENDENT OF RAILWAY POLICE GUWAHATI 12 Advocate for : MR I RAFIQUE Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 4 14 THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM. FINANCE DEPARTMENT DISPUR GUWAHATI 781006 UNDER SUSPENSION) S O LATE GAGAN SONOWAL RESIDENT OF VILLAGE KADAM KACHARI PO CHARAI MORAI PS BOGINADI DIST LAKHIMPUR ASSAM 787032 2:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM FINANCE(ESTABLISHMENT B) DEPARTMENT GUWAHATI 781006 3:THE DEPUTY COMMISSIONER 4:THE ACCOUNTANT GENERAL GUWAHATI 29 5:THE EXECUTIVE ENGINEER PHE DIVISION NORTH LAKHIMPUR 6:THE TREASURY OFFICER Advocate for : MR. L N DIHINGIA Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS Page No.# 5 14 SANJOY KR JHA S O LATE SURENDRA JHA RESIDENT OF KALIBARI RAILWAY COLONY QUARTER NO. DS 91 A. PS LATASIL DIST KAMRUP M ASSAM THE STATE OF ASSAM AND 4 ORS TO BE REPRESENTED BY THE PRINCIPAL SECRETARY TO THE HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI 6 ASSAM 2:THE SECRETARY TO THE GOVT. OF ASSAM HOME(A) DEPARTMENT DISPUR GUWAHATI 6 ASSAM 3:THE SECRETARY TO THE HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI 6 ASSAM 4:DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GUWAHATI 7 ASSAM 5:THE DEPUTY COMMISSIONER OF POLICE GUWAHATI 01 Advocate for : MR I RAFIQUE Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 6 14 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI Date : 22 04 2021 All these writ petitions which raise a similar issue with regard to suspension of Government servant and the need for periodic review of the same are taken up for disposal at the admission stage itself. This Court has also noted that the respondent authorities have filed their affidavit in opposition in few of the cases with a further submission that the stand taken in the said affidavit would also cover the rest of the other cases. 2. Before going to the issue which calls for determination it would be convenient to state the facts of the cases in brief. 3. The petitioner in WP(C) 853 2020 Shri Nipu Kalita is a Police Officer and was posted as SI in the Dispur Police Station. Vide an order dated 09.02.2019 the petitioner was placed under suspension as he was arrested in connection with Dispur PS Case No.363 2019 under Section 392 IPC. However the order of suspension dated 09.02.2019 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done for gross misconduct negligence and dereliction of duties. Thereafter the formal charges were framed vide show cause notice dated 06.04.2019 along with a statement of allegation which was replied to by the petitioner which was received on 01.05.2019. 4. The petitioner in WP(C) 2409 2020 Shri Ajit Sonowal was working as an Accounts Officer in the office of the Executive Engineer North Lakhimpur PHE Division. He was arrested in connection with ACB PS Case No. 15 2019 under Section 7(a) of the Prevention of Corruption Act 1988. Accordingly vide the impugned order dated 07.12.2019 he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding has been initiated against him and no review of the suspension has been done. Page No.# 7 14 5. The petitioner in WP(C) 4239 2020 Shri Sanjay Kr. Jha is a Police Officer and was posted as Constableat the Panbazar Police Station Traffic Branch. Vide an order dated 30.04.2020 the petitioner was placed under suspension as he was arrested in connection with Fatasil Ambari PS Case No.169 2020 under Section 188 392 of the IPC. However the order of suspension dated 30.04.2020 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done for gross misconduct and dereliction of duties. Thereafter the formal charges were framed vide show cause notice dated 01.07.2020 along with a statement of allegation which was replied to by the petitioner on 10.07.2020. 6. The petitioner in WP(C) 4399 2020 Shri Shrawan Kumar Jha is an employee of the Assam Police. Vide an order dated 04.02.2020 the petitioner was placed under suspension as he was arrested in connection with GRPS Case No.02 04 2020 under Section 384 34 of the IPC. However the order of suspension dated 04.02.2020 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done pending departmental proceeding. Thereafter the formal charges were framed vide show cause notice dated 04.05.2020 along with a statement of allegation which was replied to by the petitioner on 27.07.2020. It is the case of the petitioner that neither any memo of charge was served within a period of three days nor there was any review of the suspension order 7. The petitioner in WP(C) 5523 2020 Shri Ajit Sonowal has approached this Court for second occasion by filing this writ petition. As narrated above while working as an Accounts Officer in the office of the Executive Engineer North Lakhimpur PHE Division he was arrested in connection with ACB PS Case No. 15 2019 under Section 7(a) of the Prevention of Corruption Act 1988. Accordingly vide an order dated 07.12.2019 he was suspended after he was released on bail from custody. The prolong suspension without any order of review is the subject matter of challenge in the earlier WP(C) 2409 2020 and during the pendency of the said writ petition a Departmental Proceeding was initiated against him vide notification dated 10.08.2020 whereby it was communicated that there was no decision to revoke the suspension order dated 07.12.2019. The petitioner contends that review after expiry of 60 days from the date of suspension is no review in the eye of law and therefore intervention has been prayed for. Page No.# 8 14 8. I have heard Shri I Rafique learned counsel for the petitioners in WP(C) 853 4239 4399 2020 as well as Shri S Borthakur learned counsel for the petitioners in WP(C) 2409 5523 2020. I have also heard Shri D Nath learned Addl. Senior Government Advocate Assam and Shri P Nayak learned Standing Counsel Finance Department Assam. The records of the case pertaining to Shri Ajit Sonowal have also been produced in original. 9. The learned counsel for the petitioners have contended that the issue is no longer res integra in view of the categorical determination of the issue by a Division Bench of this Hon’ble Court in the case of Rekibuddin Ahmed Vs. State of Assam WP(C) 3218 2019. It is contended that the Division Bench was answering a reference on the point “Whether in a case covered by Rule 6(2) of the Assam ServicesRules 1964 the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application.” 10. The Division Bench in paragraph 15 of the said judgment of Rekibuddin Ahmed supra) held as follows: “ 15. We have consciously applied our mind to the query raised by the learned Single Judge. Though the case of Ajay Kumar Choudhury(Supra) is a case where suspension order was issued pending drawal of Disciplinary Proceeding and not a case of deemed suspension the observation made by the Hon’ble Supreme Court in paragraph 20 whereby the analogy of Section 167(2) Cr.P.C. 1973has been brought in we are persuaded to hold that the principles laid down in the said case cannot be restricted to an order of suspension issued only on contemplation of drawal of Disciplinary Proceeding and not for deemed suspension. Page No.# 9 14 In our view the issue should be seen from the perspective of the consequence and effect of suspension which is the same in both the cases. We also feel that no prejudice whatsoever would be caused to the Department by such interpretation inasmuch as no blanket order of revocation of suspension is passed and it is left to the Department to make periodic review within a period of 3(three) months and decide as to whether such suspension is required to be extended or not by assigning reasons. Whether such reasons are justified and germane can be the subject matter of a separate challenge. In view of the aforesaid discussion we answer the reference by holding that the principles laid down in the case of Ajay Kumar Choudhury(Supra) would also be applicable in case of deemed suspension under Section 6(2) of the 1964 Rules.” 11. It is contended on behalf of the petitioners that after such determination by a Division Bench there is hardly any scope for a different interpretation. Therefore the petitioners contend that the impugned orders of suspension be set aside on the ground of failure to review the same within the specified time 12. The only controversy if any has arisen by the observation of this Court in WP(C) 2409 2020 in the order dated 04.09.2020 which recorded the submission of the learned Standing Counsel Finance Department that an earlier decision of the Supreme Court in the case of Union of India Vs. Rajiv Kumar reported in6 SCC 516 was not placed before Hon’ble the Supreme Court while deciding the case of Ajay Kumar Choudhury Vs. the Union of India & Anr. reported in 7 SCC 291 and in the aforesaid case of Rajiv Kumarit was held that deemed suspension under the law would remain until it is revoked by the authorities by further orders. The said case of Rajiv Kumarwas in connection with the Central Civil Services Rules. 13. Apart from the fact that the said observation dated 04.09.2020 was at an interlocutory stage in paragraph 5 of the said order it is only the submission of the learned Standing Counsel of the Finance Department which has been recorded and there was no finding as such of the Court. 14. When the issue concerning the present writ petitions has been conclusively decided by Page No.# 10 14 a Division Bench of this Court this Court as a Single Bench has no other option but to follow the said decision. In any case the Division Bench in the case of referencehas cited elaborate reasons which are in tune with the judgment of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury in the judgment dated 04.10.2019 which reads as follows: “ 20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days albeit after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 10 years and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar 1986SCC 481 and more so of the Constitution Bench in Antulay we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same 15. Though Shri D Nath learned Addl. Senior Government Advocate Assam and Shri P Nayak learned Standing Counsel Finance Department had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmedmay not be the correct interpretation this Court apart from disagreeing with such contention is also left with no scope to take a different view than the Larger Bench. In their attempt to criticize the judgment of a Division Bench before this Court which is the Single Bench certain case laws were cited which are given below: Page No.# 11 14 1. WA No.3370 20092. 2017GLT 1323. AIR 1965 SC 17674. AIR 2009 Cal 11405. IIMLJ 309 6. WP(C) 8134 2017 Judgment dated 13.09.2017 7. WP(C) 19302 20148. LPA No. 778 20099. WA No.3957 201910. Special Appeal No.576 2019 by stating that the same did not consider the case of Rajiv Kumarthis Court has noticed that the issue for determination in the case of Rajiv Kumarwas wholly different from the issue which is the subject matter of the present lis. For ready reference paragraphs 10 and 11 of the case of Rajiv Kumar is extracted hereinbelow: “ 10. In support of the appeals learned counsel for the Union of India submitted that if the interpretation put by the High Court is accepted the same would mean addition of words to Rule 10(2). The language used in the said provision is clear and unambiguous and therefore there is no scope for making any alteration in the statutory texture. It was further submitted that by accepting the interpretation Sub Rule 5(a) of Rule 10 would also be rendered 11. Per contra respondents employees who appeared in person submitted that the interpretation brings out the true essence of a deeming provision which cannot be extended beyond the purpose for which it was enacted. On a combined reading of Rules 10(2) 10(3) 10(4) and 10(5)(a) it is claimed for the respondents that the order of suspension in a case covered under Rule 10(2)(a) has limited operation for the period of detention and not beyond it. Further it is submitted that an employee cannot be placed under suspension for an indefinite period of time. Though suspension is not penal in character yet it has serious civil consequences. In the fact till date there has been practically no progress in criminal proceedings and the departmental actions initiated.” 18. A reading of the case of Rajiv Kumar would show that the same has no manner of application with the present lis and was rightly not placed before the Hon’ble Supreme Court while deciding the case of Ajay Kumar Choudhury. Page No.# 13 14 19. The records of only the case of Shri Ajit Sonowal have been placed before this Court and there is no indication whatsoever that there was any attempt to make periodic review in accordance with law of the suspension of the petitioners. 20. At the stage noticing that this Court is not inclined to have a view different from the view of the Division Bench in the case of Rekibuddin Ahmeda frail submission has been made by Shri Nayak to refer the matters before a Larger Bench. Such submission is wholly without any substance and rather can be termed as outrageous and in gross defiance of judicial decorum inasmuch as this Court as a Single Bench cannot question the findings of a Larger Bench. In fact the Hon’ble Supreme Court has laid down that even a decision of a Co ordinate Bench is binding on another Co ordinate Bench and only if some major difference in opinion occurs the Court may refer the matter to Hon’ble the Chief Justice to consider whether the issue needs to be placed before a Larger Bench. In fact the said exercise has already been performed so far as the present issue is concerned as the judgment in Rekibuddin Ahmed has been rendered in a reference made by a learned Single Judge in view of conflicting views. The matter having finally put to rest by a conclusive decision by the Division Bench in the judgment dated 04.10.2019 coupled with the fact that the said decision was not put to further challenge and has attained finality the present objection raised by Shri Nayak learned Standing Counsel is not only legally untenable but 21. In view of the aforesaid facts and circumstances this Court has no other option but to follow the decision of the Division Bench in the case of Rekibuddin Ahmed (supra Accordingly the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice whatsoever would be caused to the Department inasmuch as no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons. Further in tune with the observation of the Division Bench this Court is also hasten to add that the respective Departments would be at liberty to transfer the petitioners in any non sensitive Page No.# 14 14 22. The writ petitions accordingly stand disposed of 23. The records which pertain to only one case of Shri Ajit Sonowal are returned herewith JUDGE

A petition can be dismissed on the ground of unexplained delay and laches: High Court of Patna

While exercising its jurisdiction under Article 226, the Court is duty-bound to consider whether adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved. If the petition reveals all material facts and the petitioner has any alternative or effective remedy for the resolution of the dispute. The person invoking the jurisdiction is guilty of unexplained delay and laches or ex facie barred by any laws of limitation and the same was upheld by High Court of Patna through the learned bench led by JUSTICE P. B. BAJANTHRI in the case of Shyam Nandan Roy vs. Union of India [Case No.5708 of 2021] on 07.03.2022. The facts of the case are that the Petitioners were ex-employees of the Hindustan Urvarak and Rasayan Limited. The aforesaid corporation was closed and because of it, the employees were settled with certain compensation. Thereafter, Government of India has taken a decision to accommodate ex-employee of the aforesaid Corporation in some other organization of Government of India. The petitioners and others filed a petition and it was decided in favour of the petitioners only to the extent of examining the petitioners’ claim. Due to non-compliance the petitioners preferred contempt petition. Thereafter, the petitioners have slept over the matter till presenting of the present petition. The petitioner’s counsel submitted that cause of action still subsists in view of various correspondence by the Government. It is to be noted that the petitioners have slept over the matter till the date of presentation of this petition. Assuming that there were certain correspondence among the respondents that does not cure the delay and laches from the year 2011 to 2021. Having regard to the fact that the petitioners have slept over the matter. Moreover, except petitioner no. 2 rest of them have already crossed age of sixty years. In light of the facts and circumstances of the case, Court held that the present petition stands to be dismissed on the ground of delay and laches. The Court observed that “while exercising its jurisdiction under Article 226 is duty-bound to consider whether adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved. If the petition reveals all material facts and the petitioner has any alternative or effective remedy for the resolution of the dispute. The person invoking the jurisdiction is guilty of unexplained delay and laches or ex facie barred by any laws of limitation. If the grant of relief is against public policy or barred by any valid law and host of other factors”.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.57021 Shyam Nandan Roy Son of Late Harilal Rai resident of Village Simaria Po lice Station Barauni District Begusarai 2. Ashok Kumar Singh Son of Siyaram Singh resident of Village Bihat Zero Mile Police Station Barauni District Begusarai Jagdish Bhagat Son of Late Snehi Bhagat resident of Village Hawaspur Police Station Barauni District Begusarai Ram Naresh Rai Son of Late Ram Jatan Rai resident of Village Rachiahi Nayatola Police Station Matihani District Begusarai Bhattu Rai Son of Ram Bahadur Rai resident of Village Rachiahi Nayatola Police Station Matihani District Begusarai ... Petitioner s 1. Union of India through the Secretary Department of Chemical and Fertil izer Government of India New Delhi The Secretary Department of Chemical and Fertilizer Government of India The Under Secretary Department of Fertilizers Ministry of Chemicals and Fertilizers Government of India Shastri Bhawan New Delhi 4. Hindustan Urvarak and Rasayan Ltd. having its Corporate Office at Core 3 9th Floor SCOPE Minar Laxmi Nagar District Centre New Delhi 110092 through its Managing Director The Managing Director Hindustan Urvarak and Rasayan Ltd. having its Corporate Office at Core 3 9th Floor SCOPE Minar Laxmi Nagar District Centre New Delhi 110092 6. HIndustan Fertilizer Corporation Ltd. Madhuvan 55 Nehru Place New Delhi 110019 through its Managing Director The Managing Director Hindustan Fertilizer Corporation Ltd. Madhuvan 55 Nehru Place New Delhi 110019 Brahmaputra Valley Fertilizer Corporation Ltd. P.O. Parbatpur District Di brugarh Pin 786623 through its Managing Director The Managing Director Brahmaputra Valley Fertilizer Corporation Ltd P.O Parbatpur District Dibrugarh Pin 786623 10. Projects and Development India Ltd. PDIL Bhawan A 14 Sector I NOIDA 201301 District Gautam Buddha Nagar U.P. India through its 11. The Managing Director Projects and Development India Ltd. PDIL Bhawan A 14 Sector I NOIDA 201301 District Gautam Buddha Na gar U.P. India 12. Rashtriya Chemicals and Fertilizers Ltd having its registered Office at Priyadarshini Eastern Express Highway Mumbai 400022 through its Man Patna High Court CWJC No.57021 dt.07 03 2022 13. The Managing Director Rashtriya Chemicals and Fertilizers Ltd having its registered Officer at Priyadarshini Eastern Express Highway Mumbai For the Petitioner s ... Respondent s For the Respondent s Mr. P.N. Shahi Sr. Advocate Mr. Gajendra Kumar Singh Advocate Mr. Dr. Krishna Nandan Singhtill the date of presentation of this petition. Assuming that there were certain correspondence among the respondents in the year 2018 that does not cure the de lay and laches from the year 2011 to 2021 Having regard to the fact that the petitioners have slept over the matter. Moreover except petitioner no. 2 rest of them have already crossed age of sixty years. Hon’ble Apex Court in the case of Jammu and Kashmir V. R.K. Zalpuri repored in AIR 2016 SC 3006 at para 20 held as under: “20. Having stated thus it is useful to refer to a passage from City and Patna High Court CWJC No.57021 dt.07 03 2022 Industrial Development Corporation V Dosu Aardeshir Bhiwandiwala and Others wherein this Court while dwelling upon ju risdiction under Article 226 of the Consti tution has expressed thus: “The Court while exercising its jurisdiction under Article 226 if duty bound to consider whether a) adjudication of writ petition involves any complex and disputed ques tions of facts and whether they can be sat isfactorily resolved b) the petition reveals all mate rial facts c) the petitioner has any alter native or effective remedy for the resolution of the dispute d) person invoking the jurisdic tion is guilty of unexplained delay and e) ex facie barred by any laws of limitation f) grant of relief is against pub lic policy or barred by any valid law and host of other factors.” And also Hon’ble Apex Court in the case of State of Rajsthan Vs. Surji Devi reported in1 SCC 17 at para 6 to 9 held as under: “6. The facts which emerged are that the late husband of the respondent was removed dismissed from service by order dated 16 12 1996. He preferred an appeal which was pending before the appellate au thority. During the pendency of the ap peal the late husband of the respondent employee died passed away in the year 2009. If the late husband of the re spondent would not have been termi Patna High Court CWJC No.57021 dt.07 03 2022 nated dismissed he would have attained the age of superannuation in the year 1999. After the death of the employee late husband of the respondent she did not pursue the appeal may be she might not be aware of filing pendency of the appeal. That thereafter the re spondent widow of the employee filed a writ petition before the High Court in the year 2012. Thus by the time the re spondent preferred a writ petition be fore the High Court 15 years had passed from the date of termination and even approximately 13 years from the date on which the employee would have attained the age of superannuation i.e from the year 1999 7. Considering the afore said facts and circumstances as such the learned Single Judge ought not to have entertained the writ petition in the year 2012 challenging the order of ter mination passed on 16 12 1996 on the ground of delay and laches alone. At this stage it is required to be noted that even despite the fact that it was specifi cally prayed by the respondent in writ petition before the learned Single Judge to direct the authority to decide the ap peal preferred by her husband the learned Single Judge despite the above prayer and the pending appeal entered into the merits of the case and quashed and set aside the order of termination dated 16 12 1996 8. The submission on be half of the respondent is that the termi nation on 16 12 1996 was absolutely il legal and against the principles of natu ral justice is concerned once we hold that the writ petition was barred by de lay and laches thereafter the merits are Patna High Court CWJC No.57021 dt.07 03 2022 not required to be considered. As ob served hereinabove the learned Single Judge erred in entertaining the petition in the year 2012 challenging the order of termination passed in the year 1996 on the ground of delay and laches and more particularly when even otherwise if the termination order would not have been passed the deceased employee would have retired on attaining the age of superannuation in the year 1999 9. In view of the above and for the reasons stated above the present appeal succeeds. The impugned judgment and order dated 1 3 2019 passed by the Division Bench of the High Court as well as the judgment and order dated 17 1 2017 passed by the learned Single Judge are hereby quashed and set aside. In the facts and circumstances of the case there shall be no order as to costs.” In the light of these facts and circumstances of the case the present petition stands dismissed on the ground of delay and (P. B. Bajanthri J

Due-diligence and good faith are the utmost requirement for application of section 14 of the Limitation Act: Delhi High Court

Due-diligence though seems to be an easier task, but it is the most crucial and detailed work which is involved in any transactional or legal aspect. It deals with specification and minute information to reduce information asymmetry and confusion. A due-diligence can build a transaction, and at the same time, it can destroy one. A minute wrong in the detailing can curtail an agreement. Thus good faith and due-diligence are complementary and supplementary to each other, which cannot be separated from any situation. In the case of Indian Oil Corporation Ltd. V.The Great Eastern Shipping Co. Ltd. & Anr [O.M.P. (COMM) 188/2020], the facts of the case initiate when Indian Oil Corporation Ltd. (hereafter referred to as “IOCL”), a public sector undertaking engaged in the manufacture, distribution, and selling of petroleum and other ancillary goods. It has filed this petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter the “A&C Act”), challenging an Arbitral Award dated April 16, 2012 (hereafter “the impugned award”) given by a three-member Arbitral Tribunal. The Arbitration was held under the auspices of the Indian Council of Arbitration (Respondent No. 2) and in compliance with the Indian Council of Arbitration’s Maritime Arbitration Rules. The Arbitral Tribunal had dismissed IOCL’s claim as barred by restriction in the disputed award. The impugned award is clearly unconstitutional, according to IOCL, because the Arbitral Tribunal could not have refused IOCL the privilege of Section 14 of the Limitation Act, 1963 (hereafter the “Limitation Act”). According to IOCL, its argument was beyond the statute of limitations since the time it spent defending its claim as a counterclaim before another Arbitral Tribunal should have been removed under Section 14 of the Limitation Act. The Great Eastern Shipping Co. Ltd. (hereafter ‘GESCO’) is the first respondent and denies the above contention. IOCL had not behaved with due diligence, according to GESCO. In the arbitral proceedings launched by GESCO in relation to another deal, IOCL filed a counterclaim for Rs.1,09,86,726/-. GESCO had challenged the decision, claiming that the Arbitral Tribunal convened in that case (hereafter referred to as the “First Arbitral Tribunal”) lacked authority to hear IOCL’s counterclaim. Despite GESCO’s statement that the First Arbitral Tribunal lacks authority to decide IOCL’s counterclaim, IOCL refused to take the necessary steps to begin arbitral proceedings or appoint an arbitrator to hear its case. It continued to pursue its counterclaim before the First Arbitral Tribunal, despite the fact that IOCL knew or should have known that the tribunal lacked jurisdiction to hear the case. Second, even though it is assumed that the First Arbitral Tribunal lacked jurisdiction to hear IOCL’s lawsuit, it could not have done so because the claim was excluded by restriction at the time the counterclaim was filed with the First Arbitral Tribunal. The dispute in this case is limited to determining if the contested award contains any patent infringement that warrants interference under Section 34(2A) of the A&C Act. The court, in this case, had held that “The Tribunal held that IOCL had rendered no explanation as to how it had proceeded before the Arbitral Tribunal constituted under COA-2007. It further reasoned that IOCL was a Public Sector Undertaking and had the requisite expertise for “chartering of ships, accounting and for legal framework”. Thus, it could not be expected that the legal lapse went unnoticed even after GESCO had objected to withholding of the amount from the payments made under COA-2007, on 30.08.2007. The contention that the aforesaid considerations are irrelevant, is unmerited. A plain reading of the impugned award indicates that the Arbitral Tribunal was of the view that IOCL had not acted with due diligence. Indisputably, this is one of the aspects to be considered for determining whether provisions of Section 14 of the Limitation Act are applicable.” “It is seen from the above that the question whether the requirement that a party had prosecuted the proceedings with due diligence and in good faith, is a necessary condition for application of Section 14 of the Limitation Act. In the present case, it is apparent that the Arbitral Tribunal doubted that this condition was met as is evident from the its observations that it was not expected that the lapse on the part of IOCL would have gone unnoticed. The fact that GESCO had pointed out that the First Arbitral Tribunal would not have the jurisdiction to entertain the counter claims cannot be stated to be irrelevant. The Arbitral Tribunal had noted the same in the context of ascertaining whether IOCL had pursued its counter claim before the First Arbitral Tribunal in good faith.”

IN THE HIGH COURT OF DELHI AT NEW DELHI O.M.P.188 2020 Judgment delivered on: 17.03.2021 INDIAN OIL CORPORATION LTD THE GREAT EASTERN SHIPPING CO. LTD. & ANR Advocates who appeared in this case For the Petitioner For the Respondents Mr Ramabhadran V. Senior Advocate with Mr Shashwat Goel Mr Amitava Majumdar Mr Arvind Kumar Gutpa Mr Rishabh Saxena Mr Prashant Bhardwaj and Mr Rishi Bhardwaj Advocates HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J Indian Oil Corporation Ltd.is a Public Sector Undertaking engaged in the business of import distribution and sale of petroleum and other ancillary products. It has filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996 the ‘A&C Act’ impugning an Arbitral Award dated 16.04.2012made by an Arbitral Tribunal comprising of three members. The Arbitration was conducted O.M.P.188 2020 under the aegis of the Indian Council of Arbitrationto IOCL. IOCL claims that its claim was within the period of limitation as the period spent by it in pursuing its claim as a counter claim before another Arbitral Tribunal ought to have been excluded in terms of Section 14 of the Limitation Act Respondent No. 1 The Great Eastern Shipping Co. Ltd.disputes the aforesaid contention. According to GESCO IOCL had not acted with due diligence. IOCL had claimed an amount of ₹1 09 86 726 as a counter claim in the arbitral proceedings instituted by GESCO in respect of another contract. GESCO had contested the same on the ground that the Arbitral Tribunal constituted in that matter hereafter referred to as the ‘First Arbitral Tribunal’) did not have the jurisdiction to entertain IOCL’s counter claim. However despite GESCO pointing out the First Arbitral Tribunal jurisdiction to decide IOCL’s counter claim IOCL did not take the necessary steps for commencing arbitral proceedings or appointment of an Arbitrator to adjudicate its claim It continued to press its counter claim before the First Arbitral Tribunal which IOCL knew or ought to have known did not have the jurisdiction to decide O.M.P.188 2020 the same. Second it is submitted that even if it is ignored that the First Arbitral Tribunal did not have jurisdiction to entertain IOCL’s claim it could not have done so as the claim was barred by limitation as on the date when such counter claim was filed before the First Arbitral The controversy arising in this case is confined to examining whether the impugned award suffers from any patent illegality which warrants interference under Section 34(2A) of the A&C Act The parties had entered into a Contract of Affreightment dated 12.05.2006188 2020 of the Laycan or within three days of IOCL’s intimation of the Laycan’s whichever is later. It was also agreed that in case the ownerwould be recoverable from GESCO GESCO nominated its vessel M.T. Prem Prachi for loading crude oil from Rastanura on 11.04.2007 and the nomination of the said vessel was accepted by IOCL IOCL claims that it found that the vessel in questionwas progressively delayed and therefore was likely to miss the Laycan. IOCL by an email dated 03.04.2007 informed GESCO that vessel in question had not even berthed at Vizag and would miss her Laycan by a large margin IOCL claims that GESCO was required to immediately substitute the vesselfor the Laycan. But GESCO failed to do so. According to IOCL this constituted breach of the obligations under COA 2006. IOCL thus made arrangements for a substitute vessel for lifting crude oil from Ras Tanura on 11.04.2007. It claims that it put GESCO to notice that all additional cost including the lighterage cost at disport would be recovered from GESCO O.M.P.188 2020 IOCL claims that by a fax email dated 25.05.2007 it informed GESCO that it had resorted to in chartering of vesselfor lifting of the parcel from Rastanura. The cargo was lightered at Vizag and discharged at CPCL. IOCL claimed that the additional expenditure incurred by it amounted to ₹1 09 86 726 and called upon GESCO to remit the same immediately failing which it would be recovered from its bills. GESCO sent an email dated 07.07.2007 disputing IOCL’s 11. According to GESCO there was no default on its part and it was not obliged to substitute a vessel till it had missed the Laycan. GESCO claims that at the material time it believed that M.T. Prem Prachi would reach the port at the given time. It further claims that IOCL’s action was pre mature and it the said additional cost of ₹1 09 86 726 incurred by IOCL. IOCL and GESCO entered Affreightment on 03.01.2007whereby it agreed to provide two vessels M.T. United Gallant and M.T. Ocean Opal for lifting crude oil from various ports 13. Disputes arose between the parties in connection with COA 2007. The said disputes related to payment of demurrages in respect of the two vessels a) M.T. United Gallant which reported for loading at Basrah Oil Terminal on 24.02.2007 and completed the loading on 08.03.2007. It arrived at the discharge port on O.M.P.188 2020 Chennai on 21.03.2007 and completed the discharge on 24.03.2007 and b) M.T. Ocean Opal which reported for loading at Basrah Oil Terminal on 20.04.2007 and completed loading on 25.04.2007. This vessel arrived at the port of discharge on 10.05.2007 and completed the discharge on 13.05.2007 The parties after an exchange of correspondence agreed that USD 3 39 790.27 was payable as demurrages in respect of M.T. United Gallant and USD 1 28 234.16 was payable as demurrages in respect of M.T. Ocean Opal. However while making the final payment IOCL deducted an amount of ₹1 09 86 726 being its claim in respect of an alleged breach of obligations on the part of GESCO under COA 2006 15. By an email dated 21.08.2007 IOCL informed GESCO about remittance made in connection with COA 2007 indicating that it had deducted a sum of ₹1 09 86 726 from the amounts payable to GESCO. GESCO responded to the same by a communication dated 30.08.2007 disputing IOCL’s claim Thereafter by a notice dated 07.04.2010 GESCO invoked the Arbitration Clause under COA 2007 inter alia claiming that IOCL had wrongfully deducted the sum of ₹1 09 86 726 . 17. GESCO nominated its Arbitrator and IOCL also nominated its Arbitrator. Both the nominated Arbitrators nominated a third Arbitrator and the First Arbitral Tribunal was constituted O.M.P.188 2020 18. GESCO filed its Statement of Claim before the First Arbitral Tribunal in respect of its claim under COA 2007. IOCL filed its Statement of Defence and counter claim before the Arbitral Tribunal on 28.10.2010. IOCL’s counter claim related to the alleged breach of COA 2006 on the part of GESCO 19. GESCO filed its rejoinder to the Statement of Defence as well as response to the counter claims before the Arbitral Tribunal on 23.12.2010 inter alia pointing out that IOCL’s claim for damages in respect of non performance of vessel M.T. Prem Prachi was not a subject matter that fell within the scope of COA 2007. It pointed out that the First Arbitral Tribunal had been constituted in terms of Clause 29 of COA 2007 and in terms of the said Clause the jurisdiction of the First Arbitral Tribunal was confined to disputes arising under COA 2007 and did not extend to disputes relating to any other agreement The First Arbitral Tribunal noted that the Arbitration Clause Clause 29) was worded to cover “all disputes arising under this Charter Party”. The First Arbitral Tribunal was constituted under the said Clause of COA 2007 and thus its jurisdiction was confined to the dispute under COA 2007. Before the First Arbitral Tribunal it was conceded by IOCL that COA 2007 did not include any clause that entitled IOCL to withhold payments against claims relating to any other The First Arbitral Tribunal held that it had no jurisdiction to entertain IOCL’s claim for damages arising in connection with COA O.M.P.188 2020 2006. Accordingly on 28.03.2011 it rendered an arbitral award hereafter ‘the First Arbitral Award’) in favour of GESCO for a sum of ₹1 09 86 726 and directed that the same be paid within a period of thirty days. GESCO was also awarded interest at the rate of 9% per annum from the date on which the amount became due that 03.08.2007 till the date of payment realization. The First Arbitral Award has become final IOCL claims that it received the First Arbitral Award dated 23.03.2011 on 10.06.2011. Thereafter IOCL issued an Arbitration Notice on 16.08.2011 for referring the disputes under COA 2006 to The Arbitral Tribunal was constituted in terms of the Arbitration Clause under COA 2006. Before the Arbitral Tribunal IOCL contended that the period from 07.04.2010 that is on the date when GESCO commenced arbitration proceedings under COA 2007 till 10.06.2011 being the date on which IOCL received the First Arbitral Award ought to be excluded as the said period has been spent in bona fide and diligent pursuit of its claim before the First Arbitral Tribunal The Arbitral Tribunal rejected IOCL’s claim as barred by limitation. The Arbitral Tribunal noted that the Statement of Claims filed by IOCL did not contain any averment as to the time spent before a wrong forum. IOCL had also not made any plea seeking condonation of delay in its Statement of Claims. The Arbitral Tribunal also noted that IOCL had not furnished any explanation as to how it had proceeded O.M.P.188 2020 before a Tribunal constituted under COA 2007 for a claim relating to the vessel M.T. Prem Prachi arising out of COA 2006 25. Mr Ramabhadran learned Senior Counsel appearing for IOCL submitted that the impugned award is patently illegal as the Arbitral Tribunal had without any justification denied IOCL the benefit of Section 14 of the Limitation Act. He submitted that the case was squarely covered by the decision of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise:7 SCC 58. He referred to Paragraph no. 9 of the said decision and submitted that a mere averment that IOCL was pursuing a remedy before another Tribunal was sufficient to attract the provisions of Section 14 of the Limitation 26. Next he submitted that the Arbitral Tribunal had rejected IOCL’s claim as barred by limitation in view of the reasons as stated in Paragraph nos. 22 25 29 34 35 and 36 of the impugned award. He submitted that a plain reading of the said paragraphs would indicate that the Arbitral Tribunal was persuaded to hold that IOCL’s claim was barred by limitation for the reason that IOCL had made a mistake in proceeding before an incorrect forum and had not taken any corrective steps even after GESCO had pointed out the same in its submissions to the counter claims filed on 23.12.2010. He submitted that an error in approaching an incorrect forum is common in all cases where Section 14 of the Limitation Act is to be applied and therefore the same cannot O.M.P.188 2020 be a ground for excluding the period spent by IOCL pursuing its claims before the First Arbitral Tribunal. He contended that since the Arbitral Tribunal had not applied the correct legal principle the impugned award is patently illegal and was also liable to be set aside as being contrary to the fundamental policy of Indian Law as held in ONGC Ltd. v. Saw Pipes Ltd.:5 SCC 705 and Associate Builders v. Delhi Development Authority:3 SCC 49 27. Next he submitted that the Arbitral Tribunal had placed undue weightage on the fact that GESCO had filed a response to its counter claims on 23.12.2010 contesting IOCL’s counter claims on the ground of jurisdiction. He submitted that the same is not relevant and in terms of the decision of the Supreme Court in Associate Buildersthe impugned order was liable to be set aside as based on irrelevant 28. Mr Amitava Majumdar learned counsel appearing for GESCO countered the aforesaid submissions. He submitted that the cause of action in the present case had arisen on 30.08.2007 and IOCL had filed its counter claim before the First Arbitral Tribunal on 28.10.2010 which was beyond the period of three years from the date of cause of action He submitted that thus in any event IOCL’s claim was barred by limitation. He also referred to the decision of the Supreme Court in State of Goa v. Praveen Enterprises:12 SCC 581 and submitted that in case of a counter claim the period of limitation would stop running on the date when the counter claim is filed O.M.P.188 2020 Reasons and Conclusion 29. At the outset it is necessary to note that it is conceded that the First Arbitral Tribunal did not have any jurisdiction to entertain IOCL’s counter claim for damages under COA 2006. The First Arbitral Tribunal had pointedly asked IOCL’s counsel whether there was any provision in COA 2006 or COA 2007 which permitted interchange of the said contracts. This was in the context of ascertaining whether IOCL could claim any amount due under COA 2006 in connection with disputes under COA 2007. IOCL’s response was in the negative. This was noted by the First Arbitral Tribunal in the first Arbitral Award as “Respondents Counsel was specifically asked by the Tribunal whether there is any clause provision in the two COAs which permits inter change between the two contracts and the answer was ‘NO’.” Even before this Court Mr Rambhadran did not suggest that the First Arbitral Tribunal had the jurisdiction to entertain IOCL’s subject It is also admitted that IOCL had not issued any notice invoking Arbitration in respect of its subject claim claim of damages for alleged breach of COA 2006 on the part of GESCO prior to its filing the counter claim before the First Appellate Tribunal. Concededly the cause of action in the case had arisen on 30.08.2007 when GESCO disputed IOCL’s adjustment of ₹1 09 86 726 from the amounts payable under COA 2007. IOCL filed its counter claim before the First Arbitral Tribunal on 28.10.2010 which was beyond the period of three O.M.P.188 2020 years from the date on which the cause of action had arisen. The Arbitral Tribunal had noted this in Paragraph no. 24 of the impugned award In State of Goa v. Praveen Enterprisesthe Supreme Court had authoritatively held as under the counterclaim. As “20. As far as counterclaims are concerned there is no room for ambiguity in regard to the relevant date for determining the limitation. Section 3(2)(b) of the Limitation Act 1963 provides that in regard to a counterclaim in suits the date on which the counterclaim is made in court shall be deemed to be the Limitation Act 1963 is made applicable to arbitrations in the case of a counterclaim by a respondent in an arbitral proceeding the date on which the counterclaim is made before the arbitrator will be the date of “institution” insofar as counterclaim is concerned therefore no need to provide a date of There is “commencement” as in the case of claims of a claimant Section 21 of the Act is therefore not relevant for counterclaims. There is however one exception. Where the respondent against whom a claim is made had also made a claim against the claimant and sought arbitration by serving a notice to the claimant but subsequently raises that claim as a counterclaim in the arbitration proceedings initiated by the claimant instead of filing a separate application under Section 11 of the Act the limitation for such counterclaim should be computed as on the date of service of notice of such claim on the claimant and not on the date of filing of It is not disputed that applying the aforesaid principle IOCL’s claim for damages under COA 2006 was time barred as on the date when it filed its counter claims before the First Arbitral Tribunal. In this O.M.P.188 2020 view the question whether the benefit of Section 14 of the Limitation Act ought to be extended to IOCL in respect of its claim is not relevant 34. Mr Ramabhadran did not dispute the above. He however submitted that since the decision in the case of State of Goa v. Praveen Enterpriseswas rendered after the impugned award was delivered the same may not be applicable. The said contention is unmerited. The Supreme Court had merely explained the law in State of Goa v. Praveen Enterprisesthe said decision cannot be construed as a change in law to be applied prospectively The fact that IOCL’s counter claim before the First Arbitral Tribunal was filed beyond the period of three years from the date of cause of action is noted in Paragraph no. 24 of the impugned award However this is not stated to be one of the reasons as mentioned in Paragraph no. 37 of the impugned award. The said paragraph only mentions the reasons as stated in paragraphs nos. 22 25 29 34 35 and 36 of the impugned Award 36. However paragraph no. 22 of the impugned award cannot be read in isolation. It merely records that the period of three years would expire on 29.08.2010. Paragraph no. 23 mentions the invocation of Arbitration under COA2007 and the fact that IOCL had filed its counter claim on 28.10.2010. The following paragraphexpressly records that by that time IOCL “had exceeded the limitation period even before the wrong forum the limitation period have not expired on O.M.P.188 2020 This Court finds no infirmity with the aforesaid view and the present petition is thus unmerited In view of the above it is not necessary to examine the other contentions advanced on behalf of IOCL. However for the sake of completeness this Court considers it apposite to do so The Arbitral Tribunal had noted that IOCL was made aware that it was pursuing its claim before the wrong forumby GESCO in its rejoinder to the counter claim filed on 23.12.2010IOCL ought to have been aware that it was pursuing its claims before a wrong forum and should have immediately sought condonation of delay and invoked the arbitration under COA 2006 The Tribunal held that IOCL had rendered no explanation as to how it had proceeded before the Arbitral Tribunal constituted under COA 2007. It IOCL was a Public Sector Undertaking and had the requisite expertise for “chartering of ships accounting and for legal framework”. Thus it could not be expected that the legal lapse went unnoticed even after GESCO had objected to withholding of the amount from the payments made under COA 2007 on 30.08.2007. The contention that the aforesaid considerations are is unmerited. A plain reading of the impugned award O.M.P.188 2020 indicates that the Arbitral Tribunal was of the view that IOCL had not acted with due diligence. Indisputably this is one of the aspects to be considered for determining whether provisions of Section 14 of the Limitation Act are applicable The contention that the decision of the Supreme Court in M.P Steel Corporation v. Commissioner of Central Exciseis an authority for the proposition that a mere averment that a party was pursuing its remedy before another forum is sufficient provisions of Section 14 of the Limitation Act is unmerited. It is relevant to note that in the said case the Supreme Court had also quoted paragraph no. 21 of its earlier decision in Consolidated Engg Enterprises v. Principal Secretary Irrigation Dept.:7 SCC 169 The said paragraph is set out below “21. “Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service 1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party 2) The prior proceeding had been prosecuted with due diligence and in good faith 3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature 4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and 5) Both the proceedings are in a court.” O.M.P.188 2020 is seen from the above that the question whether requirement that a party had prosecuted the proceedings with due diligence and in good faith is a necessary condition for application of Section 14 of the Limitation Act. In the present case it is apparent that the Arbitral Tribunal doubted that this condition was met as is evident from the its observations that it was not expected that the lapse on the part of IOCL would have gone unnoticed. The fact that GESCO had the First Arbitral Tribunal would not have the jurisdiction to entertain the counter claims cannot be stated to be irrelevant. The Arbitral Tribunal had noted the same in the context of ascertaining whether IOCL had pursued its counter claim before the First Arbitral Tribunal in good faith There is no dispute that provisions of Section 14 would be applicable in respect of claims filed before an Arbitral Tribunal. There is also no cavil as to the principles enunciated by the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Exciseis misplaced. On the Contrary in that O.M.P.188 2020 decision the Supreme Court has authoritatively held that the arbitrator is the final adjudicatory authority for determining questions of fact and the said findings even though may be erroneous are not amenable to This Court thus finds no ground to interfere with the impugned award. The petition is accordingly dismissed MARCH 17 2021 VIBHU BAKHRU J O.M.P.188 2020 Page 1

If two views are possible on the same evidence, then the views in favour of the accused must be preferred: High Court of Patna

When the witness is not declared hostile by the prosecution, the defense can rely upon the evidence of such witness and it would be binding on the prosecution. This was decreed by the court in the case of Babban Singh @ Daddan Singh Vs. State of Bihar [Criminal Appeal (SJ) No.355 of 2018] said, “Moreover, on the very same evidence, eleven persons have been acquitted and in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and graver footing, the conviction of the appellant is not sustainable” by the Hon’ble Mr. Justice Birendra Kumar on 2.07.2021. The brief facts of the case are, an FIR was filed by the informant wherein, he claimed that on the day of the village panchayat election, him along with Shiv Shankar Singh(injured) and other villagers were sitting outside his house. The Mukhiya candidate along with his supporters (12 accused) came to their house armed and expressed to kill the informant. On that, one of the co-accused fired at the informant but he dodged this by hiding behind a pillar. At this sight, all the others gathered at the house started fleeing. The appellant fired at the injured causing injury to the eye. Post investigation, the 12 accused where charged under various sections of the IPC and under the arms act an underwent trial. The trial court acquitted everyone except the appellant and on the very same evidence convicted the appellant under section 307 of the IPC and section 27 of the arms act. Aggrieved by this, the appellant filed a criminal appeal before this court challenging his conviction. The counsel for the appellant submitted that the informant is not a hostile witness since he mentioned that the injury was caused by another and not the appellant and was in contradiction to the statements of the other prosecution witnesses. Thus, there were two conflicting evidences on record. He further submits that; eleven co-accused were acquitted on the same evidence and the appellant was convicted without providing any reason as to how the present case was different from that of the 11 co-accused despite the fact that the same evidence was used. He also drew the attention of the learned court to the fact that the injured in his statement mentioned that the others fled from the scene. He mentioned that the ordinary course of conduct was to flee away from the firing and thus, it was difficult to see who had shot to cause the injury. The counsel for the respondent submitted that except the statement of the informant, the other statements by the prosecution witnesses are consistent. They mentioned that the court mustn’t disregard the statements of the other four witnesses.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.3518 Arising Out of PS. Case No. 97 Year 2006 Thana HARNAUT District Nalanda Babban Singh @ Daddan Singh Son of Anirudh Singh Resident of Village Laluadih P.S. Harnaut District Nalanda The State Of Bihar ... Appellant ... Respondent For the Appellant s Mr. Krishna Prasad Singh Sr. Advocate Mr. Davendra Kumar Pandey Advocate For the State For the Injured Mr. Rajesh Kumar Singh Advocate CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Mr. Binod Bihari Singh A.P.P Date : 02 07 2021 Altogether twelve accused persons faced trial in Sessions Trial No. 5308 corresponding to Harnaut P.S. Case No. 97 of 2006 before the learned Fast Track Court No. 1 Nalanda for offences under Sections 147 148 447 149 307 149 and 307 I.P.C. as well as under Section 27 of the Arms Act. The eleven were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 I.P.C. and 27 of the Arms Act by the impugned judgment of conviction dated 04.12.2017. By order of sentence dated 06.12.2017 the appellant was awarded ten years rigorous imprisonment and a fine of rupees fifty thousand for offence under Section 307 I.P.C. In default of payment of fine one year rigorous imprisonment was ordered. For offence under Section 27 of the Arms Act three years rigorous Patna High Court CR. APPNo.3518 dt. 02 07 2021 imprisonment was awarded along with fine of rupees one thousand. In default of payment of fine two months rigorous imprisonment was ordered 2. The prosecution case as disclosed in the written report submitted by PW 4 Gajendra Prasad Singh is that on 11.06.2006 voting for Panchayat election was going on in village Laluadih P.S Telmar O.P.) Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar SinghSudhir Singh PW 5) Murli Manohar Singh and other villagers. At about 11:30 A.M. Mukhiya candidate Deshraj Singh Chauhan Dharmendra Singh along with his supportersvariously armed came to the Dalanand exhorted others to kill Mukhiya i.e PW 4. On that co accused Dharmendra Singh fired at the informant but the informant hide himself behind a pillar. Others who were sitting there started fleeing. Then the appellant Babban Singh @ Daddan Singh carrying a pistol fired causing injury at the left eye of Shiv Shankar SinghNo.3518 dt. 02 07 2021 4. PW 1 Murli Manohar Singh PW 2 Shiv Shankar Singh PW 3 Nand Kishore Singh PW 4 Gajendra Prasad Singh and PW 5 Sudhir Singh have supported in their respective depositions about the date of occurrence the manner of occurrence the place of occurrence and the perpetrators of the crime as disclosed in the FIR. Save and except that Gajendra Prasad Singhdeposed that it was co accused Pawan Singh since acquitted) who had caused injury to Shiv Shankar Singh at the left eye has proved the formal FIR. 5. PW 6 Dharmendra Kumar is a formal witness who 6. PW 7 Dr. Parmanand Prasad Pal had treated the firearm injury on Shiv Shankar Prasad Singh. The injury report was proved by PW 7 and marked as Exhibit 7 7. PW 8 Rajesh Ranjan and PW 9 Arjun Prasad were investigating officer of the case. They have supported the investigation done by them 8. Mr. Krishna Prasad Singh learned senior counsel for the appellant contends that PW 4 Gajendra Prasad Singh who is informant of this case is not a hostile witness. He has deposed that it was co accused Pawan Singh who had caused firearm injury at the left eye of Shiv Shankar Singh. His statement cannot be taken Patna High Court CR. APPNo.3518 dt. 02 07 2021 as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence is on the record. One is of PW 4 that the injury was caused by co accused Pawan Singh and rest witnesses deposed that the injury was caused by the appellant The conflicting evidence aforesaid makes the prosecution case Learned senior counsel further contends that on the very same evidence eleven accused persons were acquitted by the same judgment without distinguishing how the case of the appellant was on separate footing to that of acquitted accused persons. The law is well settled that if two views are possible on the same evidence the views in favour of the accused should be preferred. Learned senior counsel has drawn attention of the court to the statement of PW 2 Shiv Shankar Singh the injured witness who deposed that when the firing started they all started fleeing. There is no evidence that they were fleeing facing the firing and normal conduct would be that the people would flee away from the firing In that situation it was difficult to see as to whose shot had caused the injury when several persons were allegedly indulged in firing 9. Mr. Binod Bihari Singh learned A.P.P. and Mr. Rajesh Kumar Singh learned counsel appearing for the injured contends that except PW 4 other prosecution witnesses are consistent that Patna High Court CR. APPNo.3518 dt. 02 07 2021 the appellant had caused injury at the left eye of Shiv Shankar Singh. Gajendra Prasad Singh had also stated in the FIR that appellant had caused injury to Shiv Shankar Singh. If Gajendra Prasad Singh said before the court as PW 4 that it was Pawan Singh who had caused injury to Shiv Shankar Singh that would not make other four trustworthy witnesses unbelievable 10. There is no dispute that PW 4 Gajendra Prasad Singh is not a hostile witness. Even after conclusion of the prosecution evidence Gajendra Prasad Singh did not file any application that his statement was a slip of tongue and in fact the appellant had caused injury to Shiv Shankar Singh In Raja Ram V. The State of Rajasthan reported in 2005) 5 SCC 272 the Hon’ble Supreme Court said that if a witness is not declared hostile by the prosecution the defence can rely upon the evidence of such witness and it would be binding on the prosecution. The aforesaid view was reiterated in Mukhtiar Ahmed Ansari V. The Statereported in5 SCC 258 in following terms : “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case Patna High Court CR. APPNo.3518 dt. 02 07 2021 as PW 1. He however did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead it supported the defence. The accused hence can rely on that evidence 30. A similar question came up for consideration before this Court in Raja Ram V. State of RajasthanNo.3518 dt. 02 07 2021 learned trial Judge failed to consider that witness Shiv Shankar Singh has deposed that he sustained injury while fleeing and there was no definite evidence from any prosecution witnesses of the occurrence that the witnesses including Shiv Shankar Singh were fleeing facing the firing. Hence it is doubtful that any one would have seen the real person who had caused firearm injury 12. In view of the aforesaid infirmities in my view conviction of the appellant is not sustainable in law. Accordingly the impugned judgment of conviction and order of sentence are hereby set aside. The appellant is acquitted and this appeal is allowed. Let the appellant be set free at once (Birendra Kumar J

Inaction on the part of the official notification harnessing the purpose of justice can led to punishments- Karnataka High Court

Inaction on the part of the official notification harnessing the purpose of justice can led to punishments- Karnataka High Court The brief facts of the case are – A writ petition was filed under articles 226 & 227 of the constitution of India, praying to direct the respondents to give suitable job to the petitioner in the temple in place of her late husband on compassionate grounds. This writ petition coming on for “preliminary hearing” the issue as to whether this petition was maintainable or not was raised before the court which was decided by the judgement of NAGARANTHA VS STATE OF KARNATAKA (WRP-52447/2O14) decided by the single judge bench of JUSTICE P.B.BAJANTHRI The petitioner has prayed for the following reliefs to issue Writ of Mandamus, directing the Respondents No.1 to 3 to give suitable job to the petitioner in the 4th respondent temple in place of her late husband on compassionate grounds.  Pass such other and further orders as deemed fit in the facts and circumstances of the, second respondent was directed to appear before this Court with all the records. He has appeared through Video Conference. The order dated 30.11.2018 reads as under: “In the instant petition, petitioner has sought for a direction to respondent nos.1 to 3 to give suitable job to the petitioner in the 4th respondent – temple on compassionate ground. Respondent no.2 is hereby directed to pass a speaking order, “”Whether petitioner is entitled for appointment or not and furnish a copy of the order on or before the next date of hearing. List this matter after eight weeks.” The learned counsel of the respondent stated that State Government has directed the third respondent Executive Officer to issue order of appointment to the petitioner vide order dated 27.10.2020.Perusal of the dates and events and the fact that the writ petition is pending consideration for the last six years and that too for a writ of mandamus, the second respondent has slept over the matter in not considering the petitioner’s case for compassionate appointment. The object of issuance of compassionate appointment is to meet immediate harness in the family. Inaction on the part of the official 5 respondent resulted in harness in the family. After noting the facts and argument of both the parties the High court of Karnataka stated that “the petitioner had approached the respondents for which, there was no action. Consequently, the petitioner was compelled to file the present petition. The reasons for inaction on the part of the official respondent are that State has filed a Criminal Appeal and it is pending consideration since the year 2014. Undisputedly, there is no stay of the trial court order in Criminal Appeal. Therefore, in all fairness, the respondents should have considered the petitioner’s name for compassionate appointment at least subject to result of 6 Criminal Appeal. While issuing a demand draft of Rs.10,000/- within a period of four weeks from the date of receipt of this order, since respondent Nos.3 and 4 have paid a sum of Rs.10,000/- in terms of the order dated 16.10.2020, this matter for compliance on 04.12.2020. Accordingly, the petition is allowed”

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF NOVEMBER 2020 THE HON’BLE MR.JUSTICE P.B.BAJANTHRI WRIT PETITION No.52447 2O14B.K. NAGARATHNA W O LATE ANGADAPRATHAP SIMHA AGED ABOUT 26 YEARS R AT BILGUL VILLAGE NANJANGUD TALUK MYSORE 571312. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF MUZRAI BANGALORE 560001. BY SRI. RUDRAPPA P. ADV.THE COMMISSIONER DEPARTMENT OF MUZARAI GOVT. OF KARNATAKA OPP. MINTO HOSPITAL MAHADEVESHVARA COMPLEX BENGALURU 560004. THE EXECUTIVE OFFICER SRI SRIKANTESHWARA TEMPLE NANJANGUD TALUK MYSORE 571312. 2 SRI. SRIKANTESHWARA TEMPLE REP. BY ITS EXECUTIVE OFFICER NANJANGUD TALUK MYSORE 571312. B.P. SUDHARSHAN AGED ABOUT 32 YEARS R AT 58 3RD CROSS HALLADHA KARE NANJANGUD TALUK MYSORE 571312. BY SRI. LAXMINARAYAN AGA FOR R1 TO R3 SRI. T.N. RAGHUPATHY ADV. FOR R3 & 4 V O DATED 22.01.2015 NOTICE TO R5 DISPENSED WITH) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 1 TO 3 TO GIVE SUITABLE JOB TO THE PETITIONER IN THE R 4 IN PLACE OF HER LATE HUSBAND ON COMPASSIONATE GROUNDS. THIS WP COMING ON FOR “PRELIMINARY HEARING ‘B’ GROUP” THIS DAY THE COURT MADE THE FOLLOWING: In the instant petition the petitioner has prayed for the following reliefs: To issue Writ of Mandamus directing the Respondents No.1 to 3 to give suitable job to the petitioner in the 4th respondent temple in place of her late husband on compassionate grounds. Pass such other and further orders as deemed fit in the facts and circumstances of the.” 3 2. On 16.10.2020 the following order has passed: “Due to non compliance of the order dated 30.11.2018 on 09.10.2020 second respondent was directed to appear before this Court with all the records. He has appeared through Video Conference. The order dated 30.11.2018 reads as under: “In the instant petition petitioner has sought for a direction to respondent nos.1 to 3 to give suitable job to the petitioner in compassionate ground. List this matter after eight weeks.” Respondent no.2 is hereby directed to pass a speaking order “”Whether petitioner is entitled for appointment or not’’ and furnish a copy of the order on or before the next date of hearing. The aforesaid order has not been complied despite lapse of about nearly two years. Today Sri.Dayanand second respondent Commissioner submitted that due to pendency of criminal case against the petitioner grievance of the petitioner has not been set right. On the other hand learned counsel for the petitioner submitted that criminal proceedings in S.C.No.236 2011 wherein petitioner was acquitted on 28.02.2013 and Crl.Appeal No.541 2013 is pending consideration. In view of the stage of the criminal proceedings respondent should have passed a speaking order deferring the matter relating to consideration of the petitioner’s grievance. Till date no such order has been passed. Matter is of the year 2014. For the last six years matter is though petitioner has been pending even acquitted as on 28.02.2013. At the best second respondent should have appointed the petitioner subject to result of the Crl. Appeal No.541 2013 4 since there is no stay suspension of acquittal S.C.No.236 2011. Thus there is an inaction on the part of the second respondent. In other words second respondent has slept over the file for these many years. Consequently second respondent is liable to pay Rs.10 000 to the The second respondent is hereby directed to comply the order dated 30.11.2018 before the next date of hearing. Failing which adverse order would be passed. respondent is dispensed until further orders. Re list this petition on 02.11.2020.” Pursuant to the aforesaid order dated 16.10.2020 State Government has directed the third respondent Executive Officer to issue order of appointment to the petitioner vide order dated 27.10.2020. Perusal of the dates and events and the fact that the writ petition is pending consideration for the last six years and that too for a writ of mandamus the second respondent has slept over the matter in not considering the petitioner’s case for compassionate appointment. The object of issuance of compassionate appointment is to meet immediate harness in the family. Inaction on the part of the official 5 respondent resulted in harness in the family. Now in view of the order dated 27.10.2020 the third respondent Executive Officer is hereby directed to issue order of appointment on compassionate ground to the petitioner within one month from today. Writ petition stands allowed with a cost of Rs.25 000 and cost shall be paid to the petitioner from the office of the second respondent for the reasons that the petitioner’s grievance relating to compassionate appointment was not considered on account of the alleged involvement of petitioner in a criminal proceedings which has concluded in favour of petitioner in the year 2013. Thereafter the petitioner had approached the respondents for which there was no action. Consequently the petitioner was compelled to file the present petition. The reasons for inaction on the part of the official respondent is that State has filed a Criminal Appeal and it is pending consideration since the year 2014. Undisputedly there is no stay of the trial court order in Criminal Appeal. Therefore in all fairness the respondents should have considered the petitioner’s name for compassionate appointment at least subject to result of 6 Criminal Appeal. Thus there is an inaction on the part of the official respondent for the last six years. Cost of Rs.25 000 shall be paid within a period of two months. The learned counsel for the respondent Nos.3 and 4 submitted on instructions while implementing the order dated 16.10.2020 the second respondent has directed the respondent Nos.3 and 4 to pay the cost of Rs.10 000 . When the order dated 16.10.2020 is crystal clear asking the second respondent to pay the cost of Rs.10 000 it is not appropriate in directing the respondent Nos.3 and 4 to pay the cost of Rs.10 000 for no fault on their part. Therefore the second respondent is hereby directed to pay Rs.10 000 from his pocket to the respondent Nos.3 and 4 temple while issuing a demand draft of Rs.10 000 within a period of four weeks from the date of receipt of this order since respondent Nos.3 and 4 have paid a sum of Rs.10 000 in terms of the order dated 16.10.2020. 7 Re list this matter for compliance on 04.12.2020. Accordingly the petition is allowed. Sd JUDGE CT HR

Refusal of bail is a restriction on the personal liberty of the individual: High Court of Uttarakhand.

Bail is the rule and committal to jail is an exception. 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 of Hari Prakash Agarwal S/O Sri Niranjan Lal Agarwal Vs. State of Uttarakhand (FIRST BAIL APPLICATION NO. 1548 of 2021), dealt with an issue where the applicant filed a bail application under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with. In the present case, an FIR was registered against the applicant alleged of having committed the offence under section 409, 420, 466, 467, 468, 471, 120-B of I.P.C. and Section 13(1) (d) and Section 13(2) of the Prevention of Corruption Act, 1988. An inquiry was conducted in the scholarship scam and upon such inquiry, the Additional Superintendent of Police, Haldwani, nominated the informant Dan Singh Mehta, Sub-Inspector, to initiate the proceeding. After such instruction, an F.I.R. had been lodged by Mr. Dan Singh Mehta on 26.09.2019 alleging therein that the office bearer of Monad University, situated at Hapur, had received Rs. 20,63,900/- towards scholarship amount. It was also found that the amount was misappropriated by the Monad University, the Indian Overseas Bank, Branch Hapur and five middlemen. The counsel for the applicant submitted that the applicant was posted as Branch Manager in the Hapur Branch of District Cooperative Bank Ghaziabad, Uttar Pradesh where the Monad University had opened the account of its students in the terms of Pradhanmantri Jan Dhan Yojana. The counsel further submitted that the applicant was been implicated in this matter; he is neither the beneficiary of the said scheme nor any amount had been received or transferred in his account; the disputed amount i.e., Rs. 20,63,900/- had already been transferred by the Monad University to the account of the District Social Welfare Department, Nainital. Thereby the counsel prayed for his release on bail. as the charge sheet had already been filed and there there was no chance of tampering with the evidence.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA FIRST BAIL APPLICATION NO. 15421 30TH JULY 2021 …Applicant Between: Hari Prakash Agarwal S o Sri Niranjan Lal Agarwal and State of Uttarakhand. Counsel for the Applicant : Mr. Girish Chandra …Respondent Counsel for the Respondent : Mr. T.C. Aggarwal learned Deputy Advocate General assisted by Mr. P.S. Uniyal 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.42 of 2019 registered with Police Station Bhimtal District Nainital for the offence under Sections 409 420 466 467 468 471 120 B of I.P.C. and Section 13(1)and Section 13(2) of the Prevention of Corruption Act 1988. 2 In pursuance to the order dated 04.08.2019 of the Uttarakhand Police Head Quarter Dehradun as well as in compliance of the directions of this High Court passed in Writ Petition(PIL) No. 319 dated 05.07.2019 an enquiry was conducted in the scholarship scam and upon such enquiry the Additional Superintendent of Police Haldwani nominated the informant Dan Singh Mehta Sub Inspector to initiate the proceeding. After such instruction an F.I.R. had been lodged by Mr. Dan Singh Mehta on 26.09.2019 alleging therein that the office bearer of Monad University situated at Hapur had received Rs. 20 63 900 towards scholarship amount. The said amount was misappropriated by the Monad University the Indian Overseas Bank Branch Hapur and five middlemen. Heard Mr. Girish Chandra Lakhchaura learned counsel for the applicant and Mr. T.C. Aggarwal learned Deputy Advocate General assisted by Mr. P.S. Uniyal learned Brief Holder the State through video The learned counsel for the applicant submitted that at the relevant time the applicant was posted as Branch Manager the Hapur Branch of District Cooperative Bank Ghaziabad Uttar Pradesh the Monad University opened the account of its students in the terms of Pradhanmantri Jan Dhan Yojana in his bank as per the rules the Bank was given debit authority letter for post matrix reimbursement for the purpose of transfer of amount from the accounts of Monad University every authority letter had the signature of the account holder student the applicant and his subordinate matched and verified the signature of the account holder and after verification the amount was transferred from the accounts of the students to the accounts of Monad University the applicant has been implicated in this matter he is neither the beneficiary of the said scheme nor any amount has been received or transferred in his account the disputed amount i.e. Rs. 20 63 900 has already been transferred by the Monad University to the account of the District Social Welfare Department Nainital the applicant aged about 62 years has no criminal history he is in custody since 31.05.2021 the co accused persons have been granted bail by this High Court charge sheet has already been filed therefore there is no chance of tampering with the evidence. Mr. T.C. Aggarwal learned Deputy Advocate General for the State opposed the bail application and submitted that the applicant accepted the incomplete R.T.G.S. forms and transferred money to the account of Monad University. However he fairly conceded that it is not clear at this stage that any of the scholarship amount was received by the applicant and if it was received how much was received. He also accepted the submissions of the learned counsel for the applicant that the disputed amount of Rs. 20 63 900 has been deposited with the District Social Welfare Department Nainital and the applicant has no criminal history. Bail is the rule and 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 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 merit 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 Hari Prakash Agarwal 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 with the following conditions : i) The applicant shall attend the trial court regularly and he shall not seek any unnecessary adjournment ii) The applicant shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of this case. 10. It is clarified that if the applicant misuses or violates any of the conditions imposed upon him the prosecution will be free to move the court for cancellation of bail. ALOK KUMAR VERMA J. Dt: 30th July 2021

Appellant files appeal on the ground that the information provided was incomplete, misleading or false.: Orders of AA under the RTI Act

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 Lakhan Kumar Chavan v CPIO, SEBI, Mumbai (Appeal No. 4275 of 2021). The appellant, Mr Lakhan Kumar Chavan had filed an application via RTI MIS Portal on the 28th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 25th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 25th of May, 2021 on his application, the appellate decided to file an appeal on the 25th of May, 2021. In his application on the 28th of April, 2021, the appellate was seeking the following information with respect to Citrus Check Inn Private Ltd.: In response to query numbers 1 and 2, the respondent had informed that the matter is sub-judice before the Hon’ble Supreme Court and no further directions for refund have been given yet. It was also informed that all orders of the Hon’ble Supreme Court in the matter are available on the website of citrusroyal.com The appellant had filed the appeal on the grounds that the information that he was provided with was incomplete, misleading or false. Further, the appellant has reiterated his queries in the appeal. After pursuing the application and the response, appellant authority Mr. Baiwar noted that the respondent has clearly informed that the extant matter is sub-judice before the Hon’ble Supreme Court of India and no directions for refund has been given yet. It is understood that the Hon’ble Supreme Court, vide order dated December 13, 2019, has directed the sale-cum-monitoring Committee headed by Justice (retired) J P Deodhar, to proceed with the sale of the properties of the company. He finds that the respondent has adequately addressed the queries by providing the information available with him and accordingly does not find any deficiency in the response. Further, he also noted that then respondent also provided the details of the website for accessing the orders passed by the Hon’ble Supreme Court in the matter of Citrus Check Inn Private Ltd. The appellant can check the same from time to time, for updated information in the matter.

Appeal No. 42721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42721 Lakhan Kumar Chavan CPIO SEBI Mumbai The appellant had filed an application dated April 28 2021 under the Right to Information Act 2005Please provide me information As the Commission Agents or the Citrus Checks In n Company Ltd has to refund the Maturity amount... 02 ) Are the Commission Agents are held responsible for the Refund of Maturity Amount If yes State So that he she is responsible for the refund of the Maturity.. The respondent in response to query numbers 1 and 2 informed that the matter is sub judice before the Hon’ble Supreme Court. Further no directions for refund have been given yet. It was also informed that all orders of the Hon’ble Supreme Court in the matter are available on the website citrusroyal.com 4. Ground of appeal The appellant has filed the appeal on the ground that the information provided was incomplete misleading or false. Further the appellant has reiterated his queries in the appeal. I have perused the application and the response. I note that the respondent has clearly informed that the extant matter is sub judice before the Hon’ble Supreme Court of India and no directions for refund has been given yet. It is understood that the Hon’ble Supreme Court vide order dated December 13 2019 Appeal No. 42721 has directed the sale cum monitoring Committee headed by Justice J P Deodhar to proceed with the sale of the properties of the company. I find that the respondent has adequately addressed the queries by providing the information available with him. Accordingly I do not find any deficiency in the response. Further I note that then respondent also provided the details of the website for accessing the orders passed by the Hon’ble Supreme Court in the matter of Citrus Check Inn Private Ltd. The appellant can check the same from time to time for updated information in the matter. 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: June 24 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

S.195 of CrPC does not hinder S.193 of IPC for the prosecution of presenting false evidence: Supreme Court

Section 195(1)(b)(i), CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193, IPC, which is committed during the stage of investigation. A bench comprising of Mohan M. Shantanagoudar J. and Vineet Saran J. have answered the question of law of whether there was an overlapping of certain words across sections 193 IPC and S. 195(1)(b)(i), CrPC, and whether they encompass production of false evidence at a certain stage of judicial proceedings in Bhima Razu Prasad Vs. State, rep. by Deputy Superintendent of Police, CBI/SPE/ACUII [Criminal Appeal No. of 2021 arising out of S.L.P. (Criminal) No. 5102 of 2020] The various accused parties were involved in an agreement of sale dated 24.01.2001 to purchase properties from the other, for which a sum of Rs 80 lakhs was to be paid in advance. Since Accused No. 2 was not available on that date for execution of the written agreement, he had entrusted the seized currency, along with a duplicate copy of the agreement signed by him, to the Appellant. The agreement was to be executed by Accused No. 3 in the presence of Appellant. The accused no.2 also presented documents to present his financial capability to purchase the property. The High Court confirmed the Trial Court’s finding that the Accused had conspired to fabricate false evidence for shielding Appellant/Accused No. 1 from prosecution in the disproportionate assets case; following which the appeal lay before the Court. The Court framed the contended question of law as, whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence in relation to a “proceeding in any court” under Section 195(1)(b)(i), CrPC? 6.2 Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC? The court turned to the decision in Bandekar Brothers Pvt. Ltd. and Another v. Prasad Vassudev Keni and Others [AIR 2020 SC 4247] wherein it was noted that it was important that once these Sections of the Indian Penal Code are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, it was made clear that the offence punishable under these Sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court. The court in relation to the second question of equating the terms “proceeding in any court” and “stage of a judicial proceeding” concluded that, “It can be seen from the above discussion that this Court has, in some instances, opined that where the law deems proceedings before a certain authority to be “judicial proceedings”, the same would be considered as “proceedings in any court” under Section 195(1)(b)(i), CrPC. Therefore, if the offence under Section 193, IPC is committed before such an authority, the written complaint of that authority is mandatorily required for trial of the offence.”

3.1 The Appellant Accused No. 1 was working as Regional On 4.01.2001 case was registered against the Appellant under Section 120B read with Sections 420 467 468 and 471 of the Indian Penal Code 1860 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 in addition to jewellery and property papers was seized from the Appellant’s residence. Since these assets were found to be 2020) wrote letter dated 4.02.2002 to the Superintendent of Police CBI ACU­II claiming that the seized currency did not belong to the Appellant Accused No. 1. They contended that Accused No. 2 had entered into agreement of sale dated agreement he had entrusted the seized currency along with a The agreement was to be executed by Accused No. 3 in the raided on that date the money could not be paid and the Accused No. 2 produced the purported sale deed dated 24.01.2001typed out on stamp paper before the of Rs 80 lakhs to Accused No. 3. However pertinently the Investigation conducted by the Respondent revealed much below Rs 80 lakhs. Further that the first property was since 4.9.1998 whereas a portion of the second property had No. 4 stamp vendor S. Mohankumar through whom the stamp on 7.10.1992. No stamp paper of any denomination had been Nos. 2­4 to fabricate false deed of agreement for sale for the purpose of being shielded from legal action in the Special Judge for CBI Cases Chennai framed charges against the Appellant and Accused Nos. 2­4 under Section 120B read with Section 193 of the IPC in addition to No objection was raised by the accused at the stage of taking of cognizance. However during the course of trial the Accused argued that complaint under Section 195(1)(b) of the Code of Criminal Procedure 1973 was necessary for prosecuting the case under Section 193 IPC. The Trial Court rejected this argument by referring to the opinion of the Constitution Bench in Iqbal Singh Marwah and Another v Meenakshi Marwah and Another 4 SCC 370 Furthermore based on the evidence on the record the Trial Court found that it was not proved that Accused No. 2 had entrusted the seized currency to the Appellant for holding in escrow till completion of sale transaction by Accused No. 3 Hence the Trial Court convicted the Appellant under Section 120B and 193 of the IPC and sentenced him to rigorous of the CrPC were not complied with prior to framing of charge under Section 193 IPC. Therefore framing of charge without Court was illegal and without jurisdiction. The High Court rejected this contention and held that the procedure under affect administration of justice i.e. pertaining to documents which are custodia legis. Thus the offence must be committed after a document is produced in evidence before the Court Therefore Sections 195(1)(b)(i) and 340 CrPC will not be during the investigative phase prior to their production during The High Court relied upon the decision of a three­Judge State of Bihar and Another 2 SCC 493 and the later Constitution Bench decision in Iqbal Singh Marwah is analogous to the former provision. Hence the observations made in the aforementioned decisions are equally applicable to the present case. On merits the High Court confirmed the Trial Court’s for shielding Appellant Accused No. 1 from prosecution in the disproportionate assets case. However taking into consideration before us in the present appeals challenging the impugned Learned senior counsel Mr. Basava Prabhu Patil and appearing for the Appellants Accused have forcefully argued Bench in Iqbal Singh Marwah will not be applicable to the present case. They have relied upon Bandekar Brothers AIR 2020 SC 4247 in support of their contentions. Thus they have stressed that there is an absolute bar against taking of cognizance for the offences specified under Section 195(1)(b)(i) CrPC by any means except upon written complaint by the concerned Court. This is even if the offence of giving false proceedings before a Court of law. Therefore the prosecution lodged by the Respondent agency against the Accused under Per contra learned Additional Solicitor General appearing for the Respondent Ms. Aishwarya Bhati has sought to distinguish Bandekar Brothers and other decisions relied upon by the learned counsel for the the particular facts of those cases and will not apply to the Before we proceed further we must first consider the of public servants for offences against public justice and for offences relating to documents b)(i) of any offence punishable under any of the following sections of the Indian Penal Code namely sections 193 to 196199 200 205 to 211and 228 when such offence is alleged to have been committed in or in relation to any proceeding in any Court ii) of any offence described in section 463 or 476 of the said Code when such offence is alleged to have been committed in respect of a document to commit or the abetment of any offence specified in writing in this behalf or of some other Court to means a Civil Revenue or Criminal Court and taking cognizance of offences against the administration of prosecutions by private parties. The provisions of this Section entitled to raise grievance in relation to perjury forgery of suitability of making a complaint for such offences. However i) and Section 195(1)(b)(ii) inasmuch as Section 195(1)(b)(ii) is restricted to offences which are committed in respect of a in any court”. Whereas Section 195(1)(b)(i) applies to offences against public justice which are committed not only in any Whether such semantical difference bars the analogous application of precedents relating to Section 195(1)(b)(ii) for Section 340 CrPC prescribes the procedure to be “340. Procedure in cases mentioned in section 195.—(1) When upon an application made to it in in that Court or as the case may be in respect of a document produced or given in evidence in a proceeding in that Court such Court may after such preliminary inquiry if any as it thinks necessary c) send it to a Magistrate of the first class having accused before such Magistrate or if the alleged offence is non­bailable and the Court thinks it necessary so to do send the accused in custody to 4) In this section “Court” has the same meaning as Court in State of Punjab v. Jasbir Singh 12 SCC 96 has referred the question of whether it provide opportunity of hearing to the would­be­accused under Section 340 CrPC prior to making a complaint under Section 195 for consideration of a larger Bench. Therefore we shall be Court was required under Section 195(1)(b)(i) CrPC in the present case without delving extensively into the aspect of under Chapter XI under the heading “Of False Evidence and “192. Fabricating false evidence. Whoever causes document or electronic record containing a false statement intending that such circumstance false before a public servant as such or before an arbitrator and that such circumstance false entry or false statement so appearing in evidence may cause any person who in such proceeding is to form an 193. Punishment for false evidence. Whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for either description for a term which may extend to Explanation 2: An investigation directed by law is a stage of a judicial proceeding though that investigation may not take place before a Court of Appellant Accused No. 1 and recover the seized currency at the have erroneously opined that the seized currency belonged to Accused No. 2 and consequently abandoned proceedings under Section 13(1)(e) PC Act against the Appellant. Therefore Section our consideration in these appeals is whether the investigating agency under Section 193 IPC production of such evidence before the Trial Court This in turn requires us to resolve the Whether an offence under Section 193 IPC committed at the stage of investigation prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court is an offence “in relation to” a proceeding in any court under Section 195(1)(b)(i) CrPC equated with “proceeding in any court” under Section 195(1)(b)(i) CrPC Before answering the questions stated in paragraph 6 this Court which have considered similar issues arising under ii) CrPC is applicable to documents which are forged prior to read with Section 340(1) CrPC will only apply in respect of offences which are committed during the time when the document concerned was custodia legis or in the custody of the “5. The contention of the appellants is that if the after its production in court. In other words according to the appellants the decisive event for for obvious reasons. Section 190 of the Code cognizance of “any offence” upon receiving a own knowledge. Section 195 restricts such general extent curtailed. It is a well­recognised canon of interpretation that provision curbing the general interpretation unless the statute or the context b)(ii) as containing a bar against initiation of prosecution proceedings merely because the the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavoury consequences. For instance if rank forgery of a valuable document is detected and the forgerer is sure that he would he can simply get that document produced in any long­drawn litigation which was either instituted by him and thereby pre­empt the prosecution for the is capable of more than one interpretation the one causing mischievous is capable of of “Provisions as to offences affecting the appellates. So the offences envisaged in Section offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that involving forgery of a document if committed far affecting administration of justice merely because 13. The three­Judge Bench of this Court in Patel Laljibhai Somabhai case 2 SCC 376 : 1971 the corresponding section in the old Code in almost the same manner as indicated SC 1935] related to the applicability of that sub­ section to a case where forged document was produced in a suit by a party thereto and subsequently a prosecution was launched against with the right to complain may therefore be appropriately considered to be only those offences the commission of which has a reasonably close nexus with the proceedings in that court so that it can without embarking upon a completely of prosecuting the delinquent party. It therefore appears to be more appropriate to adopt the strict 14. After stating so their Lordships proceeded to to extend the prohibition in the sub­section to offences committed by a party to the proceedings Lordships any construction to the contrary would recognized in Section 190 of the Code.” Aforementioned observations of this Court in Patel Laljibhai Somabhai as cited in Sachida Nand Singh supra) make the import and purpose of Section 195(1)(b) CrPC clear. The provision is intended to bar the right to initiate This would certainly be the case if the document was in the custody of the Court at the time of commission of offence However the bar under Section 195(1)(b)(ii) cannot be read as The same would not have a “reasonably close nexus” with the Though these observations in Sachida Nand Singh were prohibition contained in Section 195(1)(b)(i) should not be The view taken in Sachida Nand Singh was share in the disputed property. Since the respondents’ application under Section 340 CrPC was not disposed of they Sections 192 and 193 as well as Sections 463 and 471 IPC. The Metropolitan Magistrate in that case held that both Sections 195(1)(b)(i) and CrPC operated as a bar against taking Court relying on Sachida Nand Singh held that the bar under was committed before producing the said document in court However it was noticed that Sachida Nand Singh appeared to conflict with an earlier three­Judge Bench decision in Surjit Singh and Others v. Balbir Singh 3 SCC 533. Surjit Singh had held that the bar against taking cognizance under Section 195(1)(b)(ii) would apply even if the offences stipulated therein were committed prior to production of the document “10…This being the scheme of two provisions or such which has direct bearing or affects the servant or has a direct correlation with the proceedings in a court of justice the expression in respect of a document produced or given in clause should normally mean commission of produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court does not This indicates that clause contemplates a committed should be of such type which directly affects the administration of justice viz. which is to a document at a time prior to its production or giving in evidence in court cannot strictly speaking touching the controversy in dispute which were rendered on Section 195 of the Code of Criminal 14. A Full Bench of the Allahabad High Court in Emperor v. Kushal Pal Singh considered the scope of the 195(1) applies only to cases where an offence is committed by a party as such to a proceeding to any court in respect of a document which has been was held that an offence which has already been till say 30 years after the commission of the offence cannot be said to have been committed by a party within the meaning of clause only if there is a reasonable relation to a proceeding in that court in case of offences specified in clause [of the old Code corresponding to clause CrPC] because of the In case of offences specified in clause they are the view taken by the Allahabad High Court in Emperor v. Kushal Pal Singh and held as under in “(i) The underlying purpose of enacting Sections 195(1)(b) and and Section 476 seems to be to control the temptation on the part of the private parties to start criminal prosecution on frivolous vexations or insufficient grounds inspired by a These offences have been selected for the court s It is the judicial process or the administration of public justice which is the direct As the purity of the proceedings of the court is to be the only party entitled to consider the desirability of complaining against the guilty party The private party who might ultimately suffer can argument of learned counsel for the appellants is Surjit Singh v. Balbir Singh. The facts as stated in paras 1 and 11 of the Report show that a criminal 420 467 468 471 read with 120­B IPC alleging that the appellants had conspired and fabricated an agreement dated 26­7­1978 and had forged the suit on 9­2­1984 wherein they produced the noticed Gopalakrishna Menon 4 SCC 240 Patel Laljibhai. Reference was then made to and Sushil Kumar v. State of Haryana 136 : AIR 1988 SC 419 would not apply if the original document had not been produced or given in evidence in court. Then be understood as laying down anything contrary to what has been held in Patel Laljibhai but was made ii) would not be attracted unless the original very next paragraph after observing that the suit and the original agreement in court the view taken by the High Court that the Magistrate could 20. Since the object of deletion of the words “by a party to any proceeding in any court” occurring in Section 195(1)(c) of the old Code is to afford on the said provision in the earlier decisions would the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be document after it has been produced or given in time when the document was in custodia legis.” Curiously though the facts of Iqbal Singh Marwah also on this point. This was perhaps because the limited point for nevertheless be seen that the Constitution Bench did not interpret Section 195(1)(b)(ii) in isolation but linked its construction with the overall scheme under Sections 195(1)(b and 340 CrPC. The Court reiterated the test laid down in Sachida Nand Singh i.e. that the offence in respect of which direct correlation to or a direct impact on proceedings before a The Court further noted that the situation wherein the offence as enumerated under Section 195(1)(b)(ii) has been Even in Surjit Singh this Court had held on the facts of that Similar to Sachida Nand Singh the Constitution Bench in Patel Laljibhai Somabhai on Sections 192(b) and 192(c) of the Code of Criminal Procedure 1898 of the 1898 Code corresponding to Section 195(1)(b)(i) CrPC) the offence in any Court” which appears in Section 195(1)(b)(i) CrPC but is to encompass situations wherein false evidence has been fabricated prior to being produced before a Court of law for the appellants in that case claimed that the respondents accused had given false evidence and forged debit notes and books of initially filed application under Section 340 CrPC before the relevant Judicial Magistrate. However they later sought to convert this into private complaints in reliance upon Iqbal “13. The point forcefully argued by the learned Counsel on behalf of the Appellants is that his clients being victims of forgery ought not to be in a court proceeding and that therefore a private complaint would be maintainable in the fact circumstance mentioned in the two criminal complaints referred to hereinabove. The Court has thus to steer between two opposite poles of a from frivolous criminal complaints and the “yang” and have the Court try the offence of forgery by frivolous litigation or whether it falls within the individual s right to pursue a private complaint we 193 IPC and the offence of forgery. It noted that the averments Brothers upheld the respondents’ contentions and opined that Iqbal Singh Marwah would not benefit the appellants in that Court it was by the appellants’ own admission created “in 195(1)(b)(i) and Section 195(1)(b)(ii) of the Code of complaint attracts the provisions of Section 191 to the Code of Criminal Procedure applies. What is important is that once these Sections of the Indian Penal Code are attracted the offence should be alleged to have been committed in or in relation to that the offence punishable under these Sections in any Court but can also be an offence alleged to 22. Contrasted with Section 195(1)(b)(i) Section of offences described in Section 463 and punishable Code when such offences are alleged to have been committed in respect of a document produced or be committed in respect of a document that is custodia legis and not an offence that may have vital in understanding the sheet anchor of the Appellant s case namely this Court s judgment in Iqbal Singh Marwah would not have blanket application to Brothers this was not a situation in which the offence court proceedings. The offence of giving false evidence was committed by the respondents who were party to the court proceedings for the purpose of leading the Court to form an erroneous opinion on a point material to the result of the 11. Similar circumstances were present in Kailash Mangal v 15 SCC 729 and Narendra Kumar Srivastava v. State of Bihar and Others 3 SCC 318 which were the decisions relied upon by this Court in Bandekar Brothers IPC. Since the or in a proceeding in a civil court the case of Iqbal Therefore this Court expressly observed in Kailash proceeding which was already pending before the court the proceeding for the purpose of Section 195(1)(b)(i) CrPC. The requirement of reasonable nexus between the offence and the In Narendra Kumar Srivastava supra) the appellant had filed a private complaint contending that the Section 195(1)(b)(i) CrPC covers a different category of offence and is therefore distinct from Section 195(1)(b)(ii). Hence Sachida Nand Singh would not be applicable and complaint. However on the facts of that case this was again a situation wherein at the first instance the Court was allegedly persuaded to form an opinion based on certain false evidence Indeed at this juncture it must be noted that even were rendered in the context of balancing the right of private protecting parties to civil suits from frivolous or vexatious the right of an investigative agency such as the Respondent in fabricated false evidence during the course of criminal Nos. 6 & 6.1 is whether offence committed under Section 193 IPC during the stage of investigation prior to commencement of who is not yet party to proceedings before the under Section 195(1)(b)(i) CrPC The construction of the words “in relation to” must be controlled by the overarching principle applicable to Section 195(1)(b) CrPC as stated in Patel Laljibhai Somabhai which was affirmed by the Constitution Bench in Iqbal Singh Marwah the offence of fabricating false evidence prior to its production 1) subsequently becomes a party and produces it before the Court or for the purpose of causing the Court to form an erroneous equally possible that even if the fabricated evidence appears sufficiently convincing the investigating agency may drop proceedings against the accused and divert its time and light that the evidence was falsely adduced it will be the agency and not the Court which is the aggrieved party in such In this regard we consider it beneficial to refer to the portion of the opinion expressed by the Constitution Bench in of Section 195(1)(b)(ii) CrPC was necessary to avoid “23…Before filing of the complaint the court may effect that it is expedient in the interests of justice magnitude of injury suffered by the person affected by such forgery or forged document but having regard to the effect or impact such commission of offence has upon administration of justice. It is possible that such forged document or forgery may in the sense that it may deprive him of a very valuable property or status or the like but such or given in evidence in court where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause as canvassed by learned counsel for the appellants would render the victim of such forgery or forged 24. There is another consideration which has to be kept in mind. Sub­section of Section 340 CrPC contemplates holding of a preliminary enquiry made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is proceeding out of which the matter has arisen. In out of civil suits where decisions are challenged in whereby hearing of the case is adjourned until the actual trial of the offender for an unusually long to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This the broad interpretation sought to be placed upon courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the complaint is filed the same does not come to its logical end. Judging from such an angle will be in impracticable result should be avoided…” complaints under Section 195(1)(b)(i) CrPC upon application made by the concerned investigative agencies than in those Therefore the aforementioned reasons assigned by the Constitution Bench in Iqbal Singh Marwah for adopting a narrow construction of Section 195(1)(b)(ii) CrPC may not be strictly applicable in the present case. However the general principles of statutory interpretation laid down by the given that the Court did not consider Section 195(1)(b)(ii separately but provided a holistic view of the scheme under 17.1 Just like a private party who has been a victim of forgery committed outside the precincts of the Court the with the investigation process. Moreover the present case Act. Public interest and the reputation of the State will suffer parties in hiding their assets from scrutiny. Hence any 17.2 The application of the bar under Section 195(1)(b)(i) CrPC to situations such as the present case can lead to two scenarios. The first is one in which the investigative agency on the basis of false fabricated material drops the case falsified. Second the investigative agency at that very stage suspects that the material produced before them is bogus or forged in nature. In both scenarios the Court has not had an for lodging a complaint under Section 195(1)(b)(i) read with Section 340 CrPC when the evidence alleged to have been falsified is not even present on its records. Rather it is the investigating agency which is best placed to verify and prove 17.3 In case the bar under Section 195(1)(b)(i) is applied to may think it fit to wait till the completion of trial to evaluate the alleged fabrication of evidence during investigation has not had any material impact on the trial and decline to initiate prosecution for the same. The investigation agency cannot be hide the original crime. Further irrespective of the potential transparent probe into a criminal offence. Thus we are of the view that it would be impracticable to insist upon lodging of It must be clarified that the aforementioned opinion expressed by us is limited to factual situations such as the been initiated in the first place. The same may not apply for example where the investigation agency on the basis of false person other than the real perpetrator for a particular offence Subsequently the Court during the course of trial proceedings may take judicial notice of such defect in the investigation rise to much difficulty. However at this juncture we decline to In this regard we also find it necessary to distinguish the three­Judge Bench decision of this Court in Arvindervir themselves had this Court in writ proceedings initiated by the Punjab and Haryana Bar Association directed the CBI to conduct an independent investigation 1 SCC 616]. Subsequently after abduction and murder alleged to have been committed by the appellant­accused. So far as the offence punishable under Sections 193 and 211 IPC was concerned it was for the having jurisdiction. However the three­Judge Bench did not discuss the scope and ambit of “in relation to” under Section 195(1)(b)(i) CrPC. Moreover since this decision was rendered supra) the three­Judge Bench did not have the benefit of referring to the observations made in that case. Hence the decision in Arvindervir Singh will not have any application to the case at hand as it involved a completely different set of III. Whether “ stage of a judicial proceeding ” under Explanation 2 to Section 193 IPC is synonymous with ” under Section 195(1)(b)(i) CrPC of Explanation 2 to Section 193 IPC which deems an investigation preliminary to a proceeding before a Court of the Section. Such deeming provision applies even though that the investigation which is a “stage of a judicial proceeding” under Explanation 2 Section 193 IPC would be an offence committed “in relation to any proceeding in any Court” under 20.1 The purpose of Explanation 2 to Section 193 IPC is proceedings whether civil or criminal. However whether the commission of such offence would require the complaint of a before whom such false evidence is given. For example if a person gives false evidence in an inquiry before the Magistrate under Section 200 CrPC that would undoubtedly be an offence committed before a Court under Section 195(1)(b)(i) CrPC before an investigating officer prior to the Court having taken 20.2 The object and purpose of Section 195(1)(b) CrPC must in respect of certain offences to public servants or to the relevant aggrieved or impacted by those offences. Furthermore for the purpose of Section 195(1)(b)(i) CrPC there must be an intention on part of the alleged offender to directly mislead the Court into judicial proceeding insofar as it may culminate in issue of process and trial against the accused it would not be a investigation. The difference between a “stage” of a judicial We find it necessary to distinguish certain decisions of State of Maharashtra 6 SCR 700 a Constitution Bench Tax Officer under the Indian Income Tax Act 1922 would be proceedings in any court under Section 195(1)(b) of the 1898 Code which was the corresponding section in that Code to that proceedings before the Income Tax authority shall be deemed to be “judicial proceedings”1898 Code are synonymous. Therefore a private complaint complaint under Section 195(1)(b) CrPC in respect of false the competent appellate authority authorized to make a complaint under Section 195(4) CrPC. However the Division Bench referring to Lalji Haridas made an ancillary observation that such search operation is deemed to be a “judicial proceeding” under Section 193 CrPC and that the relevant purpose of Section 195 CrPC. This is as per the express and Another 1 SCC 466 a three­Judge Bench of this Court was faced with the issue of whether 195(1)(b)(i) CrPC IPC alleging making of false statements in affidavit before the of Letting Rent and Eviction) Act 1972. Similar to the aforementioned income tax statutes Section 34(2) of the 1972 Act provided that the District Magistrate or the prescribed 1898 Code. Moreover that proceedings before such authority provision made under Section 34(2) of the 1972 Act the Rent if any false evidence was given during the course of such proceedings only the Rent Control Officer was authorized to make complaint of the same under Section 195(1)(b)(i) CrPC Even otherwise on the facts of the case the three­Judge Bench found that abuse of criminal process had taken place and observed that “chagrined and frustrated litigants should not be jurisdiction of the criminal court” It can be seen from the above discussion that this Court has in some instances opined that where the law deems proceedings before a certain authority to be “judicial proceedings” the same would be considered as “proceedings in any court” under Section 195(1)(b)(i) CrPC. Therefore if the offence under Section 193 IPC is committed before such an required for trial of the offence. However the facts of the decisions in Lalji Haridas Babita Lila and In the present case pursuant to recovering the seized currency from the Appellant’s house on 24.01.2001 the Section 13(1)(e) PC Act against him. Accused Nos. 2 and 3 at the behest of the Appellant wrote letter dated 4.02.2002 to the Superintendent of Police CBI stating that the seized currency was held by the Appellant as part of an escrow arrangement sale deed dated 24.01.2001 and certain books of account in support of their claim. There was no involvement of the Trial the sale deed were obviously intended to convince the investigation agency that the Appellant had not accumulated the veracity of the contents of this letter they would not only but also wrongfully returned the seized currency under the but the Respondent authority agency which has been directly impacted due to fabrication of evidence by the the Trial Court at least not at the first instance. Rather their of wrongdoing at the stage of investigation itself. It was after being charged under Section 193 IPC that the 193 IPC was committed by the Appellants “in relation to” a Section 2(i) CrPC defines “judicial proceeding” as was admittedly a stage of a judicial proceeding by virtue of Explanation 2 to Section 193 IPC. However neither was the b) CrPC. Hence the decisions in Lalji Haridas and Chandrapal Singh will have no applicability to the present case. Thus it can be concluded that the investigation conducted by the Respondent under the PC Act cannot be b)(i) CrPC though it is deemed to be a stage of a judicial paragraph 18 where the fabrication of evidence has bearing on the trial court’s opinion and hence the bar under Section 195(1)(b)(i) CrPC may be applicable. However in the present case the investigating agency has been sagacious IPC at the preliminary stage. Therefore as stated by us in insist upon the requirement of an independent inquiry and 24.01.2001. The supposed agreement of sale was also not highly belated stage on 4.02.2002 almost a year after the recovery of the seized currency though the Appellant had corresponded with Accused No. 2 in May­June 2001. It is improbable in the ordinary course of conduct that a person be illegal. Hence it is apparent that the Appellants accused false circumstance of escrow transaction for the purpose of High Court has shown great lenity by reducing the sentences The questions of law formulated in paragraph 6 Section 195(1)(b)(i) CrPC will not bar punishable under Section 193 IPC which is provided that the investigating agency has lodged IPC prior to commencement of proceedings and In such circumstance the same would not be 24.1 The appeals are accordingly dismissed both on law and off against the period of imprisonment if any already undergone by the Appellants. The Appellants are directed to surrender are not already in custody. The Registry is further directed to expeditiously release the amount of fine if any deposited before this Court. If any arrears of fine are remaining the Appellants

This Commission will not wait for the decision whether to prefer the appeal or not, it has to be filed 45 days from the date of order: Karnataka State Consumer Disputes Redressal Commission

The reasons stated in the application were insufficient. The appellant should have filed them in a timely manner. This Commission need not wait for just a decision over whether or not to accept the appeal. The appeal must be filed in less than 45 days of the order’s date. As a result, the application was not acceptable and was not allowed under the law. This was held in the case of Kamat Yatrinivas Pvt Ltd v. Smt. Varsha Sharma [ A/738/2021], before Hon’ble Presiding Member, Mr. Ravishankar and Member, Mrs. Smt Sunita Channabasappa Bagewadi. The brief facts of the case are as follows; the complainants deposited Rs.7,90,000/- and Rs.5,10,000/- in the Opposite Party company for the guaranteed interest of 17% per year, which is payable annually. The appellants/complainants issued deposit receipts and paid interest at a rate of 17 percent until May 2019. Following that, they stopped paying interest, for which the complainants favoured the complaints asserting deficiency in service to direct the Opposite Party to pay the the whole F.D. amount plus interest from the date of default payment. After being served with a notice, the opposing party did not appear before the District Commission and was thus placed ex-parte.  The District Commission issued an order finding a deficiency of service against the Opposite Party and ordered the Opposite Party to pay the above-mentioned sum with interest. The appellant strongly contended that, despite being served with notice, the notice never reached the Management of the Opposite Party/company, and thus they were unable to represent the accusation. As a result, the non-representation before the District Commission was not deliberate, and the appellant requests that the ex-parte order issued against them be reversed. There was a 122-day delay in filing the appeal. The reason given in the application and affidavit was that after learning of the ex-parte order, the awarded amount had to be arranged, and due to the Covid-19 pandemic, the hotel operations had come to a halt, and the company’s management was dedicated to saving the remaining operations. Only after operational stability was achieved could the company decide whether or not to choose the appeal. As a result, he asks for condoning for the delay in filing the appeal.\ The Commission held that, “The reasons averred in the application are not satisfactory. The appellant ought to have filed these appeals well within time. This Commission will not wait for the decision whether to prefer the appeal or not. The appeal has to be filed within 45 days from the date of order. Hence, the application is not acceptable and not fit to allow in the eye of law. Further, the reasons narrated for not appearing before the District Commission is also not satisfactory, because they admit that the notice was served on them but it was not reached the management of the Opposite Party/Company. Hence, they could not represent the complaint before the District Commission. Further, ongoing through the order passed by the District Commission, the notice was issued both physically and also through ‘e’ mail, but the Opposite Party have not appeared before the District Commission knowing fully that the complainant has filed a complaint. Hence, the reasons are not acceptable in the eye of law. There is no any illegality or irregularity in the order passed by the district commission. Hence, the appeals are liable to be dismissed.”

KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN BANGALORE First Appeal No. A 738 2021 Date of Filing : 27 Sep 2021 Arisen out of Order Dated 08 02 2021 in Case No. CC 572 2020 of District Bangalore 1st 1. Kamat Yatrinivas Pvt Ltd No.72 73 5th cross 5th Main Opp Gopalpura Bus Stop Cmall Scale Industries Corporation Rajajinagar Bengaluru 560010. Reptd by its Managing Director 1. Smt Varsha Sharma W o P P Sharma Aged 72 yrs No.340 AMS Layout 2nd stage 3rd cross Vidyaranyapura Bengaluru 560097. ...........Respondent(s HON BLE MR. Ravishankar PRESIDING MEMBER HON BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER Dated : 09 Nov 2021 Final Order Judgement THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BANGALORE. (ADDL. BENCH DATED THIS THE 9 DAY OF NOVEMBER 2021 SRI RAVI SHANKAR JUDICIAL MEMBER SMT. SUNITA C.BAGEWADI LADY MEMBER 1 APPEAL NOS. 738 2015 & 739 2015 Kamat Yatrinivas Pvt. Ltd. No.72 73 5 Cross 5 Main Opp. Gopalpura Bus Stop Cmall Scale Industries Corporation Rajajinagar Bangaluru 560 010 Reptd. by its Managing Director By Shri Smt. H.S.Chandramouli Adv. Versus Smt. Varsha Sharma W o P.P. Sharma Aged 72 years No.340 AMS Layout 2 Stage Cross Vidyaranyapura Bengaluru 560 097 P.P. Sharma S o Late Devraj A a 79 years No.340 AMS Layout ….….Appellant is same in both the appeals Respondent in appeal No.738 2021 2 Stage 3 Cross Vidyaranyapura Bengaluru 560 097 Respondent in appeal No.739 2021 BY SRI.RAVI SHANKAR JUDICIAL MEMBER The appellants in both the appeals have preferred these appeals against the order passed by the District Commission which directed them to pay F.D. amount of Rs.7 90 000 and Rs.5 10 000 respectively together with interest @ 17% p.a. from 24.06.2019 till payment along with Rs.5 000 towards damages and Rs.5 000 towards litigation expenses 2. The appellants are the same and the facts involved in both these cases are same. Hence both these appeals are taken up together and are being disposed of by a common order. The parties to the appeal shall be referred to as complainant and Opposite Party respectively as per their rankings before the District Forum The brief facts of the complaint are as under: The complainants have deposited Rs.7 90 000 and Rs.5 10 000 respectively in the Opposite Party company for the assured interest @ 17% per year which is payable every year. After deposit the appellants complainants have issued deposit receipt and also paid interest @ 17% till may 2019. There afterwards they stopped paying the interest for which the complainants preferred the complaints alleging deficiency in service with prayer to direct the Opposite Party to pay the entire F.D. amount along with interest from the date of payment of default. After notice the Opposite Party not appeared before the District Commission hence placed Ex parte. The District Commission after considering the documents produced by the complainants passed an order holding that there is a deficiency of service against the Opposite Party and directed the Opposite Party to pay the amount with interest as above 6. Being aggrieved by the said order the appellants Opposite Party is before this Commission on various grounds 7. Heard arguments on admission. 8. The learned counsel for appellant vehemently argued that though notice was served on them the notice never reached the Management of the Opposite Party company and therefore they could not represent the complaint. Hence non representation before the District Commission was not intentional and therefore prays to set aside the ex parte order passed against them. 3 9. Further we noticed that there is a delay of 122 days in filing this appeal and on noticing the application filed by the appellant the reason given in the application and affidavit that on knowing the ex parte order passed against them the awarded amount had to be arranged and due to the Covid 19 pandemic the hotel operations had come to a standstill and the management of the company were committed to salvaging the remaining operations. Only once an operational stability was attained the company could arrive at a decision to prefer the appeal. Hence prays to condone the delay in filing the appeal 10. The reasons averred in the application are not satisfactory. The appellant ought to have filed these appeals well within time. This Commission will not wait for the decision whether to prefer the appeal or not. The appeal has to be filed within 45 days from the date of order. Hence the application is not acceptable and not fit to allow in the eye of law. Further the reasons narrated for not appearing before the District Commission is also not satisfactory because they admits that the notice was served on them but it was not reached the management of the Opposite Party Company. Hence they could not represent the complaint before the District Commission. Further on going through the order passed by the District Commission the notice was issued both physically and also through ‘e’ mail but the Opposite Party have not appeared before the District Commission knowing fully that the complainant has filed a complaint. Hence the reasons are not acceptable in the eye of law. There is no any illegality or irregularity in the order passed by the District commission. Hence the appeals are liable to be dismissed. Accordingly we proceed to pass the following: Both the appeals are dismissed. No costs The amount deposited in both these appeals shall be transmitted to the concerned District Commission to pay the same to the Respondent complainant respectively The original of this order shall be kept in appeal No.738 2021 and a copy thereof shall be kept in appeal No.739 2021 Send a copy of this order to both parties as well as Concerned District Commission Sd Sd Lady Member. Judicial Member HON BLE MR. Ravishankar HON BLE MRS. Smt.Sunita Channabasappa Bagewadi 4 5

Appellate authority found that the respondent is not obliged to provide a response where the information sought is vague and not specific.: 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 Aman Kumar v CPIO, SEBI, Mumbai (Appeal No. 4349 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Aman Kumar had filed an application via RTI MIS Portal on the 24th of June, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 15th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 15th of June, 2021, on his application, the appellate decided to file an appeal on the 18th of June, 2021. In his application, the appellate was seeking the following information: “Provide the list of traded quantity and price at time between 14:49 to 14:50 dated 25.03.2021 (total 1 minute) of symbol BANKNIFTY21MAR33500CE NIFTY BANK OPTION 33500 CE EXPIRY 25.03.2021 NATIONAL EXCAHNGE.” The respondent, in response to the query 1, informed that the query is not clear and specific. Accordingly, the same cannot be construes as “information”, as defined under section 2(f) of the RTI Act. The appellant has filed an appeal on the ground that the information provided was incomplete, misleading or false. The appellant has reiterated his query in the appeal. The appellant has also submitted that his query is clear. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri S. C. Sharma vs. CPIO, Securities and Exchange Board of India (Decision dated August 30, 2012), the Hon’ble CIC held: “Since the Appellant had not clearly stated what exact information he wanted, the CPIO could not have provided any specific information to him. We would like to advise the Appellant that he might like to specify the exact information he wants from the SEBI and prefer a fresh application before the CPIO.”. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43421 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43421 Aman Kumar CPIO SEBI Mumbai The appellant had filed an application dated June 24 2021under the Right to Information Act 2005 of symbol BANKNIFTY21MAR33500CE NIFTY BANK OPTION 33500 CE EXPIRY 25.03.2021 NATIONAL EXCAHNGE.” The respondent in response to the query 1 informed that the query is not clear and specific. Accordingly the same cannot be construes as “information” as defined under section 2(f) of the RTI Act. 4. Ground of appeal The appellant has filed an appeal on the ground that the information provided was incomplete misleading or false. The appellant has reiterated his query in the appeal. The appellant has also submitted that his query is clear. 5. Upon a perusal of the query I note that the same is vague. Further it is difficult to ascertain what exact information has been sought by the appellant. I am inclined to agree with the observation of the respondent that the request for information made therein was vague and not specific and the same Appeal No. 43421 cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. In this context I note that in the matter of Shri S. C. Sharma vs. CPIO Securities and Exchange Board of India Decision dated August 30 2012) the Hon’ble CIC held: “Since the Appellant had not clearly stated what exact information he wanted the CPIO could not have provided any specific information to him. We would like to advise the Appellant that he might like to specify the exact information he wants from the SEBI and prefer a fresh application before the CPIO.” In view of these observations I find that the respondent is not obliged to provide a response where the information sought is vague and not specific. Accordingly 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 16 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The court cannot interdict if proceedings are already initiated against the petitioner by a competent authority: Delhi High Court

The court cannot take up matters when a previously filed suit is still pending and it concerns the same subject matter of jurisdiction. This was held by Hon’ble Justice V. Kameswar rao in the case of Abhishek Yadav vs. Food Corporation of India and Anr. [W.P.(C) 224/2021, CM No. 589/2021] on the 23rd of august 2021, before the Hon’ble High court of Delhi at New Delhi. The brief facts of the case are, the petitioner was transferred from Bhopal to Kolkata vide order dated February 05, 2020 and was relieved from his duties w.e.f. afternoon of February 20, 2020. The petitioner represented against the transfer on humanitarian grounds. On March 03, 2020, while on his way to Kolkata, the petitioner met respondent No.2, who assured the petitioner of sympathetic consideration. the petitioner instead of proceeding to Kolkata, returned to Bhopal. Thereafter, the petitioner was placed under suspension w.e.f. March 30, 2020. The Headquarter of the petitioner was changed from Kolkata to NOIDA vide Order dated May 27, 2020 and the petitioner joined NOIDA on June 01, 2020. Then the suspension of the petitioner was revoked vide order dated June 02/03, 2020. The petitioner was issued a Major Penalty Charge Sheet on August, 04, 2020. Aggrieved by the charge sheet, the present petition has been filed praying for the charge sheet to be quashed. The counsel for the petitioner submitted that, t is a fit case where charges framed against the petitioner need to be dropped. He also relied upon the orders of the Division Benches of this Court wherein according to him, in similar circumstances, where the employees have been transferred from their place of posting to different places and had not joined the transferred places, were charge sheeted, which were set aside on their submitting an apology and also making voluntary deposit in the AIIMS Poor Fund Account. It was also submitted that, the issuance of charge sheet is actuated by mala fide on the part of the respondent No.2.  The counsel for the respondent however submitted that till May 27, 2020, there is no order changing his posting from Kolkata. It is only after the change of place of posting to NOIDA, the petitioner joined his duties on June 01, 2020 at NOIDA. It was submitted that he did not join his place of posting for almost three months.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: August 23 2021 W.P.(C) 224 2021 CM No. 589 2021 ABHISHEK YADAV Petitioner Through: Mr. Tushar Ranjan Mohanty Adv. FOOD CORPORATION OF INDIA & ANR. Respondents Through: Mr. Manoj SC for FCI with Ms. Aparna Sinha Adv. HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.The present petition has been filed by the petitioner with the following prayers: “In view of the facts and circumstances mentioned herein above and the submissions made Petitioner prays that the Hon ble High Court may be graciously pleased to: i) issue rule nisi to the Respondents ii) quash and set aside the Major penalty charge sheet dated 04.08.2020same iii) grant all consequential benefits of the iv) allow exemplary costs of the present Writ the Petitioner against Respondents and W.P.(C) 224 2021 Pages 1 8 v) pass such other and further orderas may be deemed just and appropriate in the facts circumstances and premises of present case.” In substance the petitioner is challenging the charge sheet dated August 04 2020 issued to him. The charge against the petitioner is the following: STATEMENT OF ARTICLE 0F CHARGES FRAMED AGAINST SHRI ABHISHEK YADAV GMFCI ZONAL OFFICE NOIDA Article of Charge I Shri Abhishek Yadav GM was transferred from MP Region to Zonal OfficeKolkata vide Office Order No. 12 2020 E.1 dated 5.2.2020. Zonal Officerelieved the officer from West Zone wef 20.2.2020 with the direction to report to Executive Director Zone ZO Kolkata vide Office Order No. 21 2020 dated 19.2.2020. Shri Abhishek Yadav was placed under suspension vide Order No.E.1 PF AY 2020 WZ dated 30.3.2020 as he did not report to his new place of posting within the stipulated time. Subsequently officer has reported at his new place of posting i.e. Zonal Officeon 1.6.2020 and his suspension was revoked vide Order dated Shri Abhishek Yadav GM did not join place of posting after expiry of Joining time and W.P.(C) 224 2021 Pages 2 8 remained unauthorized absent from duty 20.2.2020 to 31.5.2020. By the above act Shri Abhishek Yadav GMexhibited lack of devotion towards her duty and exhibits gross in subordination towards lawful orders of the Corporation. Thus Shri Abhishek Yadav GM General) has contravened the FCIRegulation 1971 article 32 A (6) (9) (19) 22) &224 2021 Pages 3 8 04 2020 and in retaliation the respondent No.2 filed a Police Complaint in the evening of the same day. By using his influence and his powerful friends the respondent No.2 was successful in getting an FIR registered against the petitioner on August 15 2020 and that too for non cognizable offences. The petitioner submitted a detailed reply to the major penalty charge sheet. However without considering the said reply the Inquiring Authority had been appointed on October 15 2020. He stated that the respondent No.2 has been inimical towards the petitioner for reasons best known to him and it was the respondent No.2 who had issued the impugned Major Penalty Charge Sheet. The situation took a turn for the worse on July 31 2020 at 7 O’ Clock in the morning when the petitioner received a call from the respondent No.2 during which the respondent No.2 threatened the petitioner of physical harm. It is in this background that the complaint was lodged by the petitioner. Mr. Mohanty submits that it is a fit case where charges framed against the petitioner need to be dropped. He also relied upon the orders of the Division Benches of this Court wherein according to him in similar circumstances where the employees have been transferred from their place of posting to different places and had not joined the transferred places were charge sheeted which were set aside on their submitting an apology and also making voluntary deposit in the AIIMS Poor Fund Account. Mr. Mohanty states that similar procedure can also be resorted to in the case of the petitioner as well. W.P.(C) 224 2021 Pages 4 8 I am not impressed by the submissions made by Mr. Mohanty for the simple reason that the charge against the petitioner is that he did not join the place of posting at Kolkata. The petitioner was transferred to Kolkata on February 05 2020. He was relieved from Bhopal on February 20 2020. It is his case that on way to Kolkata he met the respondent No.2 in Delhi who had assured him of a sympathetic consideration because of which he went back to Bhopal and did not proceed to Kolkata. This aspect has been denied by Mr. Manoj learned Standing Counsel appearing for the respondent. Till May 27 2020 there is no order changing his posting from Kolkata. It is only after the change of place of posting to NOIDA the petitioner joined his duties on June 01 2020 at NOIDA. The issue is why did he not join the place of posting for almost three months. The reasons given by the petitioner in his representation are that there was lockdown in Bhopal and 2) that his wife was travelling to Brazil for which he had to take leave. The fact is the petitioner holding a high post of General Manager was neither on the rolls of Bhopal nor of Kolkata. Was he absent unauthorizedly The Inquiry Officer has been appointed so also the Presenting Officer. The petitioner has also appointed his defence assistant. The petitioner has also participated in the proceedings before the Inquiry Officer. The charge framed against the petitioner shall be decided by the Inquiry Officer based on the evidence to be produced by the Charged Officer as well as the Presenting Officer. This Court is W.P.(C) 224 2021 Pages 5 8 of the view that in the facts of this case the Court should not interdict the proceedings initiated against the petitioner. A plea is advanced by Mr. Mohanty that the issuance of chargesheet is actuated by mala fide on the part of the respondent No.2. In this regard he has referred to a complaint filed against respondent No.2 by the petitioner. Suffice to state no such case has been set up by the petitioner on facts in his reply to the chargesheet. His only case is of malice in law that too by stating that the chargesheet has been issued by not following the rules and instructions. No doubt the petitioner did say that there is also malice in fact but he did not elaborate the same in the manner he has done in the petition. The plea of mala fide clearly appears to be an afterthought. That apart though the respondent No.2 has retired the new disciplinary authority is pursuing the chargesheet. Regarding the reliance placed by Mr. Mohanty on the orders passed by the Division Bench of this Court the same are on different factual situations inasmuch as in the said cases the petitioners were working as Statistical Officers and who have some explanation for not joining the places of transfer for personal reasons and illness. The reasons given by the petitioner for not joining the place of posting have already been stated above. The justifiability of reasons have to be gone into by the Inquiry Officer Disciplinary Authority. It is not for the Court to consider the relative merit of the stand of the parties and come to a conclusion. W.P.(C) 224 2021 Pages 6 8 In this regard I may refer to the Judgment of the Supreme Court in the case of Union of India and Ors. v. Upendra Singh 1994SCC 357 wherein the Supreme Court has held as under: “6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on imputation or framed no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed even after the conclusion of the disciplinary proceedings if the matter comes to court or tribunal they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court tribunal is one of judicial review the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi Excise and Taxation Officer cum Assessing Authority Karnal v. Gopi Nath & SonsSCC 312]. The Bench comprising M.N. Venkatachaliah J.and A.M. Ahmadi J. affirmed the principle thus: SCC p. 317 para 8) “Judicial review it is trite is not directed against the decision but is confined to the decision making process. Judicial cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches on a matter which it is authorised by law to decide W.P.(C) 224 2021 Pages 7 8 a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.” emphasis supplied) The writ petition filed by the petitioner is dismissed. It is made clear that my above conclusion must not be construed as determination on the merit of the charge framed against the CM No. 589 2021 Dismissed as infructuous. V. KAMESWAR RAO J AUGUST 23 2021 aky jg W.P.(C) 224 2021 Pages 8 8

Alleged of Killing the deceased the Court denied bail to the petitioners, Missing Reports by the Petitioners haven’t been launched even after the deceased going missing makes the contentions stronger: High Court Of Patna

 The Petitioners alleged of Dowry Demand, Torture, and Killing of the deceased were not granted bail by the Court. They didn’t try finding the deceased for a long time after she went missing. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Bhawani Devi and others v. The State of Bihar[Criminal Miscellaneous No.1440 of 2021].  The facts of the case were that Petitioner no. 3 had been arrested and he might be permitted to withdraw the filed petition by the Learned Counsel on his behalf. The Petition was hence disposed of by the court as withdrawn and the case was restricted to Petitioner No. 1 and 2. The Petitioners were alleged of being a part of the killing of the party as the body was found in the pond of them. Hence, they were apprehended arrest under Section 304B/34 of the Indian Penal Code. Learned counsel for the petitioners submitted that they are separate in mess and residence and have no connection with any foul play. It was added that the marriage took place 6 years prior and the couple had 2 children and there exists no event to commit the crime. It was mentioned in the FIR about the Dowry Demand and Torture but there exists no supporting evidence or material to the same with the police or the deceased. Learned counsel submitted that the pond was of the temple in the village and the deceased may have slipped and fallen in the pond leading to her death by drowning. The Learned Additional Public Prosecutor of the State added and submitted that the mentioned circumstances indicate the involvement of the petitioners. It was the duty of the petitioners that if the deceased had gone somewhere and have not returned and there exists no information or news about the same, to report and intimate the police as she was missing. The information was given by some other person and when they arrived the body was lying in the pond and it seemed as if the members didn’t bother at all and hadn’t informed anyone. It was further argued that a normal person must inform the authorities about such an incident but in this case, the circumstances weren’t acceptable that they were so unaware of the deceased. The Hon’ble High Court Of Patna,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP. The conduct of the petitioners, as has been submitted by learned APP, does not inspire confidence with regard to their innocence.” The Court hence denied the petition for pre-arrest bail and dismissed it.  

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.14421 Arising Out of PS. Case No. 683 Year 2019 Thana BANKA District Banka Bhawani Devi aged about 55 years wife of Anirudh Sah Chandan Shah @ Chandan Kumar Sahaged about 35 years Rohit Kumar @ Rohit Sahaged about 28 years both sons of Anirudh All resident of Village Parghari P.S. Dhoriya Dist. Banka ... Petitioner s The State of Bihar For the Petitioner s For the State Mr. Md. Najmul Hodda Advocate Ms Pushpa Sinha APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s Date : 05 08 2021 ORAL JUDGMENT 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 30.07.2021 which was allowed. 3. Heard Mr. Md. Najmul Hodda learned counsel for the petitioners and Ms. Pushpa Sinha learned Additional Public Prosecutorfor the State 4. Learned counsel for the petitioners submitted that the petitioner no. 3 has been arrested and he may be permitted to withdraw the petition on his behalf. In view thereof the petition on behalf of petitioner no. 3 Rohit Kumar @ Rohit Sah stands Patna High Court CR. MISC. No.14421 dt.05 08 2021 disposed of as withdrawn and is restricted to petitioners no. 1 and 2 namely Bhawani Devi and Chandan Sah @ Chandan 5. The petitioners apprehend arrest in connection with BankaPS Case No. 6819 dated 23.09.2019 instituted under Sections 304 B 34 of the Indian Penal Code 6. The petitioner no. 1 is the mother in law and petitioners no. 2 and 3 are the brothers of the husband of the deceased. The allegation against them is of being party to killing her as the body was found in a pond. 7. Learned counsel for the petitioners submitted that they are separate in mess and residence and have no connection with any foul play if at all it has taken place. It was submitted that the marriage took place six years prior to the incident and there are two minor children also born out of the wedlock and thus there was no occasion to commit such crime. Further it was submitted that in the past there has been no complaint before any authority though it has been mentioned in the FIR that there was demand for dowry and the victim was tortured but without any supporting material. Learned counsel submitted that the pond was of the temple in the village and the deceased may have slipped and fallen in the pond leading to her death by Patna High Court CR. MISC. No.14421 dt.05 08 2021 drowning but there was no foul play much less by the petitioners. It was submitted that the husband of the deceased is in custody since 23.09.2019. It was further submitted that the petitioners have no other criminal antecedent. 8. Learned APP submitted that the circumstances indicate the involvement of the petitioners and it appears that a crime was committed for the reason that they were family members of the deceased living in the same house and if the deceased had gone somewhere and had not returned it was their duty to look for her or to intimate the police that she was missing and the informant who lives somewhere else was informed at 11.00 AM and thereafter when he came the body was still lying in the pond which indicates that the petitioners were either totally not bothered or because of their role had not intimated any authority. It was submitted that the natural conduct of a person would be that if any person of the household is missing they would look for the person and would also inform the authorities but in the present case the victim having been out of the house for a long period and the body found in the village pond near the temple it cannot be accepted they were unaware of such development for the reason that the informant came to know at 11.00 AM and then it must have Patna High Court CR. MISC. No.14421 dt.05 08 2021 been taken some time for him to reach the village and when he came the body was still lying in the pond which clearly shows that the family of the husband of the deceased have much to explain as she was living in the matrimonial home. 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. The conduct of the petitioners as has been submitted by learned APP does not inspire confidence with regard to their innocence 10. For reasons aforesaid the Court is not inclined to grant pre arrest bail to the petitioners 11. Accordingly the petition stands dismissed Ahsanuddin Amanullah J J. Alam

Slight difference in the nature of services for the battle against Covid-19: Delhi High Court

The slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards. Such preventive measures must be adopted rather than continuing to keep the establishments closed. This was contended by the Delhi High Court, in the case Ms. Sukaita and othrs. vs. Government of NCT of Delhi and Anr. [W.P.(C)6555/2020] and Association of Wellness Ayurveda and Spa vs. Government of NCT of Delhi [W.P.(C)7366/2020], presided by J. Pratibha M. Singh. In the present case, the Petitioners are technical workers who have been trained under various national bodies and run spas in Delhi. In effect, the grievance of the Petitioners is that, after the lockdown in March 2020, though various other establishments have been permitted to reopen and commence businesses, spas have still been forced to remain closed. The Petitioner is also aggrieved by the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines for re-opening of spas. Accordingly, the Court permitted the reopening of spas, wellness clinics and similar establishments, in the GNCTD, by laying specific guidelines to be followed and strict measures to be taken.

9 & 10 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th January 2021. MS. SUKAITA & ORS. W.P.(C) 6555 2020 GOVERNMENT OF NCT OF DELHI & ANR. Petitioners Through: Mr. Sachin Dutta Senior Advocate with Mr. Lal Singh and Mr. Sudhir Tewatia Advocates. Mr. Swastik Singh and Mr. Himanshu Dagar Advocates. Mr. Mukesh Sharma Advocate. Respondents Through: Mr. Anjum Javed Additional Standing R 1. Counsel M:9999596970) Ms. Shalini Nair Ms. Anjana Gosain Ms. Aditi Amitabh Advocates. for R 2.W.P.(C) 7366 2020 &CM APPL. 31473 2020 ASSOCIATION OF WELLNESS AYURVEDA AND SPA Petitioner Through: Mr. Sachin Dutta Senior Advocate with Mr. Lal Singh and Mr. Sudhir Tewatia Advocates. Mr. Randhir Kr. Lal Advocate. GOVERNMENT OF NCT OF DELHI & ORS. Respondents Through: Mr. Anupam Srivastava ASC for GNCTD Advocate for R 1. Ms. Shalini Nair Ms.Anjana Gosain & Ms.Aditi Amitabh Advocates. for R 2. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) 1. This hearing has been done in physical Court. W.P.(C) 6555 2020& W.P.7366 2020 CM APPL. 1359 2021in W.P.(C) 6555 2020 This application for impleadment has been filed by World Men’s Hospitality Pvt. Ltd. Since the applicant seeks remedies similar to the Petitioners in W.P.(C) 6555 2020 impleadment is allowed. Application is disposed of. W.P.(C) 6555 2020 W.P.(C) 7366 2020 &CM APPL. 31473 20203. The Petitioner in W.P 7366 2020 is an association of wellness Ayurveda and Spa providers in NCT Delhi. The Petitioner is aggrieved by the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines for re opening of spas and seeks quashing of order dated 3rd August 2020 issued by the Ministry of Health and Family Welfare 6555 2020 the Petitioners are technical workers who have been trained under various national bodies and run spas in Delhi. In effect the grievance of the Petitioners is that after the lockdown in March 2020 though various other establishments have been permitted to reopen and commence businesses spas have still been forced to remain The Petitioners rely on the MoHFW’s office memorandum dated 18th November 2020 permitting reopening of spas subject to various conditions. Despite the same the GNCTD has not permitted the reopening of spas. Mr. Datta ld. Senior counsel appearing for the Petitioner submits that on the one hand salons and other similarly placed centers have already opened however spas are not being permitted to be opened which is completely discriminatory. He further submits that the guidelines issued by the GNCTD continue to place an embargo on the re opening of spas. Reference is made W.P.(C) 6555 2020& W.P.7366 2020 spas. to the Delhi Disaster Management Authority’s order dated 1st June 2020 which explicitly prohibits the reopening of spas as well as the affidavits filed on behalf of the GNCTD including the most recent affidavit dated 15th December 2020 wherein the GNCTD has refused to permit the reopening of This Court vide order dated 4th December 2020 had come to a prima facie conclusion that the distinction sought to be made between salons and spas would be discriminatory. The Court observed that the additional affidavit filed by GNCTD gave two reasons for not permitting reopening of spas and observed as under: “1. The additional affidavit filed on behalf of the respondent no.1 gives two reasons for not permitting the activity of the petitioners 1) That the final decision from the Ministry of Home Affairs Government of India respondent no.2 has not been received with respect to opening of Spas 2) That the Lieutenant Governor of Delhi has declined to grant permission to modify the status quo as the number of Covid 19 cases are increasing and no physical distancing is possible in the setting of Spas. 2. As far as the first reason is concerned the learned counsel for the petitioners and the learned counsel for the respondent no.2 have clarified that the Ministry of Health and Family Welfare by its Office Memorandum dated 18.11.2020 has already issued the Standard Operating Procedure for allowing the functioning of Spas. The Ministry of Home Affairs has also issued the Order dated 25.11.2020 detailing the guidelines of surveillance containment and caution to be enforced up to 31.12.2020. In terms of Para 9 of the guidelines all activities except the ones mentioned in the said W.P.(C) 6555 2020& W.P.7366 2020 paragraph have been permitted outside containment zones. This would necessarily include 3. The learned counsel for the respondent no.1 however maintains that it would not be possible to meet the conditions as stipulated in paragraph 3(a) of the Office Memorandum dated 18.11.2020 in respect to 4. In this regard the learned counsel for the petitioners has submitted that other businesses specifically in relation to Salons having similar issues have been permitted by the respondent no.1 to operate. They submit that the additional affidavit also does not give any reasons for discriminating between the two 5. I prima facie find merit in the submissions made by the learned counsels for the petitioners. 6. The respondent no.1 shall take a fresh decision on the above submission of the petitioners and file an affidavit in this regard within a week from today.” Thus the Court after finding merit in the stand of the Petitioners gave an opportunity to the GNCTD to reconsider the matter and file an affidavit. Pursuant to the said order the GNCTD has now filed an affidavit wherein it states as under: “2. That in compliance of the order dated 04.12.2020 the issue was referred to the Health and Family Welfare Department GNCTD for providing reasons for differential treatment of business of salon and that of spas. It has been opined by the Health Department that in salons there is limited duration of time of contact between the client and the service provider whereas in setting of a spa there is prolonged contact between W.P.(C) 6555 2020& W.P.7366 2020 the matter was placed before the two individuals that too in a small and closed room which raises the probability of spread of 3. That in the light of expert advice tendered by the Director General of Health Service Chairman Delhi Disaster Management Authority i.e the Hon’ble Lt. Governor of Delhi and the expert opinion of DGHS was consideration and the competent authority has decided to maintain status quo with respect to opening of spas in GNCT of Delhi till further orders keeping in mind the larger public interest.” A perusal of the above affidavit shows that the only reason given is a longer duration of proximity with the client which is the cause for concern. This Court has heard ld. counsels for the Petitioners as also for the GNCTD and the Union of India. A perusal of the office memorandum dated 18th November 2020 issued by the MoHFW shows clearly that a decision has been taken to reopen spas subject to the following conditions: “The matter has been examined and it is informed that his Ministry may not have any objection to opening up of Spas subject to the following conditions: a) The employees and clients of Spas maintain requisite physical distancing of 6 feet in the premises avoid overcrowding use masks maintain hand hygiene and sanitize environment and equipment regularly. b) MHA has no objection and or approves it through their next Unlock order.” Subsequent to November 2020 as on date several developments have taken place including the reduction in the number of Covid 19 cases as also the introduction of a vaccine. Moreover a large number of W.P.(C) 6555 2020& W.P.7366 2020 establishments have already reopened and reopening of schools and colleges is also being contemplated. There is however no doubt that the question of reopening any particular class of establishments is a delicate one to be taken after due consideration of the relative merits and demerits. While the spread of Covid 19 is the main factor to be considered it has to be also balanced with the interest of reopening of businesses and establishments to bring back a semblance of normalcy. These establishments provide direct and indirect employment to a large number of employees and their businesses have come to a standstill since the outbreak of the pandemic. As of June 2020 i.e. almost six months ago salons which offer similar services have already been opened in Delhi subject to such establishments observing the standard operating procedure prescribed by the MoHFW on 3rd August 2020 which prescribes the following general measures: Individuals must maintain a minimum distance of 6 feet as far as feasible. ii. Use of face covers masks is mandatory at all times with in the premises. However during yoga exercise or exercising in gymnasiums as far as possible only a visor may be used. Use of maskduring exercise may cause difficulty in breathing. Practice frequent hand washing with soap even when hands are not visibly dirty. Use of alcohol based hand sanitizerscan be practiced wherever feasible. iv. Respiratory etiquettes to be strictly followed. This involves strict practice of covering one’s mouth and nose while coughing sneezing with a tissue handkerchief flexed elbow and disposing off used tissues properly. W.P.(C) 6555 2020& W.P.7366 2020 9. Self monitoring of health by all and reporting any illness at the earliest to state and district helpline. Spitting should be strictly prohibited. Installation & use of Aarogya Setu App shall be advised to all. This Court is of the opinion that the slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards rather than continuing to keep such establishments closed. It also cannot be lost sight of that several salons also provide services akin to those provided in spas. Thus the difference between the services provided in Salons and Spas is very minimal. Both these services require service providers and service takers to remain in close proximity for a sufficient duration. Thus while allowing the opening of salons continuing the embargo on spas would be violative of the rights of these establishments and their employees. 10. While this Court is conscious of the importance of prescribing strict safeguards that ought to be taken by establishments providing spa services as also the clients who visit these establishments the continuation of the embargo on reopening of spas is unjustified. Accordingly this Court permits the reopening of spas wellness clinics and similar establishments in the GNCTD subject to the following conditions: i. There shall be strict compliance of the conditions specified in the office memorandum of 18th November 2020 prescribed by the MoHFW in respect of spas which is extracted above. The 6 feet distance shall be in general maintained between clients and W.P.(C) 6555 2020& W.P.7366 2020 employees. Insofar as the service providers i.e. therapists etc. are concerned they shall maintain all standards of hygiene masking etc. as set out below In addition considering the nature of services provided in spas all employees in such establishments shall undergo fortnightly RTPCR tests especially the therapists who are likely to come in close contact with the clients. iii. All therapists and other employees as also the visitors shall be subjected to thermal temperature checks and if anyone shows any symptoms they would not be permitted entry in the establishment. iv. All service providers shall wear face shields and masks while providing therapy. For treatments which are longer than thirty minutes a PPE kit should also be worn in addition. v. Clients should preferably wear masks to the extent possible considering the nature of services which are availed of. vi. All visitors clients shall sign a declaration form to the effect that they have not contracted Covid 19 and if they have they have tested negative. The establishments are permitted to take a written consent form accepting the risks that may be involved for vii. Tools including clothing other apparel towels etc. used for clients shall be sanitised after each and every treatment. It shall be ensured that hygienic conditions are maintained in the spas and any other safeguards in force for salons shall also be adhered to by the spas. 11. Subject to the above conditions being adhered to by spas wellness W.P.(C) 6555 2020& W.P.7366 2020 clinics and similar establishments the said establishments are permitted to 12. The petitions are allowed in the above terms and all pending be opened. applications are disposed of. PRATHIBA M. SINGH JUDGE JANUARY 14 2021 W.P.(C) 6555 2020& W.P.7366 2020

If petitioner was in jail for so many years, he could not have participated in the inquiry proceedings: High Court of J&K and Ladakh

When the petitioner is in jail for so many years, then how could he be expected to participate in the inquiry proceedings or join the service nor he might be in the knowledge of all these things being going on. Thus, admittedly, the petitioner had not been afforded with an adequate opportunity of being heard as held by the Hon’ble Court of J&K through a learned bench of Justice Tashi Rabstan in the case of Pritam Bhattacharya Vs Union of India & ors. [CM No.4001/2020] The facts-in-brief as averred in the writ petition are that the petitioner came to be appointed as Charge Mechanic in Border Road Organization on 24.08.2002. Thereafter the petitioner was promoted to the post of Junior Engineer E&M and was posted at 1052 Field Workshop, C/O 56 APO Rajouri. It was averred that on 10.06.2011 the petitioner was granted 10 days leave and after the expiry of leave period he could not join the unit because of sudden heavy flood in the home district of petitioner due to heavy rain. In the meantime the relations between the petitioner and his wife became strained and on her complaint FIR No.305 dated 12.03.2012 came to be registered against the petitioner at Police Station Berhampore and the petitioner was kept in jail for number of years and came to be released from jail on 05.07.2016. It was averred in the petition that after release from jail the petitioner reported for duty at Headquarter 31 BRTF but was not allowed to join. It is averred that the petitioner also made a representation, but of no avail. Hence, the present petition was filed. The Hon’ble Court after a perusal of the facts on record observed that in terms of Rule 14(4) of CCS Rules, the disciplinary authority was required to deliver or cause to be delivered to the petitioner a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the petitioner to submit, within such time as may be specified, a written statement of his defence and state whether he desires to be heard in person. Although, it seems the petitioner was in jail, yet the record reveals that neither any show cause notice was caused to be served upon him nor any inquiry was conducted in terms of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, CCS Rules) so as to show the cause of his absence before removing him from service. Therefore the court stated that “Since the petitioner was in jail for so many years, then how could he be expected to participate in the inquiry proceedings or join the service nor he might be in the knowledge of all these things being going on. Thus, admittedly, the petitioner had not been afforded with an adequate opportunity of being heard. The action of respondents, therefore, is in violation of Articles 14 & 16 of the Constitution of India and also against the principles of natural justice. Further, in paragraph-2 of parawise reply to the objections, the respondents have specifically averred that during the service tenure of petitioner, nothing adverse came in the notice of respondents; meaning thereby the respondents have admitted that the petitioner had a clean service record.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 27.10.2021 Pronounced on : 17.11.2021 SWP No.1082 2017 IA Nos.2 2018 1 2017 3 2018 1 2018 CM No.4001 2020 …..Petitioner Pritam Bhattacharya Union of India & others Through: Mrs. Surinder Kour Sr. Advocate with Ms. Manpreet Kour Advocate Through: Mr. L.K. Moza CGSC HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE Through the medium of this petition the petitioner is seeking to quash Order No.14012 31TF P Bhattacharya 41 EIE dated 14.01.2015 issued by the Chief Engineer Project Sampark GREF respondent No.3 herein whereby the petitioner came to be removed from service and the entire period of overstayed leave was treated as absent without leave and was considered as dies non for all purposes. The petitioner is also seeking a direction to the respondents to allow him to join against the post of Junior Engineer E&M and also to release pay and allowance with effect from August 2011 with all consequential 2 SWP 1082 2017 The facts in brief as averred in the writ petition are that the petitioner came to be appointed as Charge Mechanic in Border Road Organization on 24.08.2002. Thereafter the petitioner was promoted to the post of Junior Engineer E&M and was posted at 1052 Field Workshop C O 56 APO Rajouri. It is averred that on 10.06.2011 the petitioner was granted 10 days leave and after the expiry of leave period he could not join the unit because of sudden heavy flood in the home district of petitioner due to heavy rain. In the meantime the relations between the petitioner and his wife became strained and on her complaint FIR No.305 dated 12.03.2012 came to be registered against the petitioner at Police Station Berhampore and the petitioner was kept in jail for number of years and came to be released from jail on 05.07.2016. It is also averred that the Staff Officer vide communication dated 25.05.2012 addressed to the Commanding Officer revealed that how the police authorities were blindly helping the wife of petitioner though the neighbours were ready to depose against the wife of petitioner but despite that petitioner was kept in jail under fake and false allegations leveled by his wife and all these facts he gathered from the RTI application filed by him. It is averred in the petition that after release from jail the petitioner reported for duty at Headquarter 31 BRTF but was not allowed to join. It is averred that the petitioner also made a representation but of no avail. Hence the present petition. Learned senior counsel appearing for petitioner argued that neither any show cause notice was issued nor any order was ever served upon the petitioner nor the respondents conducted any inquiry as mandated under the provisions of CCS Rules 1965. She further argued that though the respondents were having the knowledge that the petitioner was in jail for 3 SWP 1082 2017 number of years yet the respondents did not allow him to join when he reported for duty. Objections have been filed on behalf of respondents contending therein that the petitioner proceeded on 12 days casual leave with effect from 11.06.2011. Thereafter he applied for extension of leave till 31.07.2011 and was to resume duties on 01.08.2011. However he failed to report for duty on the due date in fact he never joined his duties nor reported to any nearby office the answering respondents. Accordingly roll for absent without leave desertion of GREF personnel was issued on 24.08.2011 Superintendent of Police and Deputy Commissioner Murshibadad West Bengal but he could not be traced out. Thereafter a memorandum was issued by the Commanding Officer on 07.11.2012 containing the articles of charges framed against the petitioner which was served at the given address of petitioner. Since petitioner did not respond to the articles of charges Col. Paramjot Singh Commanding Officer was appointed as the inquiry officer on 03.07.2013. Since again the petitioner did not present himself before the inquiry officer to defend himself the inquiry officer conducted the inquiry proceedings in absence of petitioner and submitted the report on 28.04.2014 holding the charges framed against the petitioner as having been proved. Thereafter again a notice was issued to the petitioner seeking his response. Since again the petitioner did not respond the answering respondents accepted the findings of inquiry officer and vide Order No.14012 31TF P dated 14.01.2015 removed the petitioner from service directing that the entire period of over staying of leave be treated as absent without leave and the said period be considered as dies non for all purposes. 4 SWP 1082 2017 Heard learned counsel appearing for the parties considered their rival contentions and also perused the record produced by the learned counsel for A perusal of the writ petition reveals that the same does not disclose when the leave period of petitioner had to expire when he applied for extension of leave what was the status of petitioner for more than seven months i.e. from 01.08.2011 when he had to join for duties to 12.03.2012 when allegedly FIR was registered against him on which date the petitioner was lodged in jail for how many days years the petitioner remained in jail when the petitioner got bail etc. Though the petition has been drafted in a totally vague immature and casual manner without any type of clarity yet after going through communication dated 25.05.2012 of Staff Officeraddressed to the Commanding Officer one can understand that the respondents were having the knowledge that the petitioner was in jail with effect from 12.03.2012 and that the said Staff Officer through the said letter requested the Commanding Officer for extending helping hand for the petitioner’s family. Therefore the assertion of respondents that the petitioner was not being traced out nor could be apprehended despite issuance of roll for absent without leave cannot be relied upon. He was discharged from service with effect from 14.01.2015 on the ground that neither he turned up to join his duties nor he presented himself in the office for facing the inquiry despite sending several communications to him when the fact of the matter was that the petitioner was in jail. It is to be seen here that in terms of Rule 14(4) of CCS Rules the disciplinary authority was required to deliver or cause to be delivered to the 5 SWP 1082 2017 petitioner a copy of the articles of charge the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the petitioner to submit within such time as may be specified a written statement of his defence and state whether he desires to be heard in person. Although it seems the petitioner was in jail yet the record reveals that neither any show cause notice was caused to be served upon him nor any inquiry was conducted in terms of the Central Civil Services Rules 1965 so as to show the cause of his absence before removing him from service. Further the respondents have themselves admitted in the objections that the inquiry proceedings were conducted against the petitioner at his back and in his absence. Since the petitioner was in jail for so many years then how could he be expected to participate in the inquiry proceedings or join the service nor he might be in the knowledge of all these things being going on. Thus admittedly the petitioner had not been afforded with an adequate opportunity of being heard. The action of respondents therefore is in violation of Articles 14 & 16 of the Constitution of India and also against the principles of natural justice. Further in paragraph 2 of parawise reply to the objections the respondents have specifically averred that during the service tenure of petitioner nothing adverse came in the notice of respondents meaning thereby the respondents have admitted that the petitioner had a clean service record. Therefore in view of what has been discussed hereinabove the writ petition is allowed and Order No.14012 31TF P Bhattacharya 41 EIE dated 14.01.2015 removing the petitioner from service is hereby quashed. The 6 SWP 1082 2017 respondents are however at liberty to conduct inquiry against the petitioner in accordance with the rules regulations occupying the field and complete the same positively within a period of three months from the date a copy of this order judgment is served upon them. Petitioner’s retention in service or otherwise shall depend on the outcome of such inquiry. Connected miscellaneous petition(s) accordingly stands disposed of. Registry to send back the record against proper receipt. Anil Sanhotra) Tashi Rabstan) Judge Whether the order is reportable Whether the order is speaking

The objective of Code of Criminal Procedure is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence: Supreme Court

The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. The same was held by Hon’ble Supreme Court in the case of Samaul SK. Vs. State of Jharkhand & Anr. [Criminal Appeal No. 894 of 2021]. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence. The facts of the case are that Hena Bibi, the respondent-2/complainant, claimed to be the appellant’s legally married wife, claiming that their marriage was legitimated on 8.2.2000 according to Muslim customs and rituals. The appellant was previously married to Mastra Bibi, and he had an alleged extramarital affair with Hena Bibi, which resulted in their marriage. The two parties are said to have been married for about a year and a half and have two children as a result of their marriage. The Court of Sub Divisional Judicial Magistrate (for short ‘SDJM’) in Pakur, Punjab, has passed a verdict in favour of the first wife of respondent No.2 and against her second husband on grounds of torture and demands of dowry. During the course of the alleged demand for dowry, the respondent-2 conceived for the second time. The case went to trial, and according to the verdict of the SDJM, Pakur, the appellant was found guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10,000/-, plus a six-month additional punishment if the amount was not paid. The appellant filed Criminal Appeal against the SDJM’s ruling, which was dismissed by the Principal District and Sessions Judge, Pakur. Following that, the appellant filed a Special Leave Petition (abbreviated as “SLP”) in the Supreme Court. During the SLP hearing, the petitioner/appellant requested an extension of the Probation of Offenders Act, 1958, which was denied on July 26, 2021. The Supreme Court stated that it was open to the possibility of a sentence reduction if the petitioner provided adequate compensation to respondent No.2 for herself and her children in addition to whatever maintenance was being paid under Section 125 of the Code of Criminal Procedure, 1973. The appellant stated that he was willing to pay compensation of Rs.3.00 lakhs to respondent No.2 for herself and the children, and that he needed around six months to raise the money. Because respondent No.2 failed to appear despite serving, skilled counsel for the State was asked to verify respondent No.2’s position on which she agreed.  The Supreme court held that, “if the petitioner/appellant is showing remorse and is willing to make arrangements for respondent No.2 and his two children born out of the wedlock, we would not like to come in the way of such an arrangement, which should be beneficial to respondent No.2 and her children”. The court also held that the above-mentioned amount of Rs.3.00 lakh shall be apart from the requirement of paying fine of Rs.10,000/- directed by the trial court. However, the court made it clear that if the amounts are not deposited, the appellant will have to undergo the remaining part of the sentence of 3 years. click here to read the judgment Judgment Reviewed by Meenakshi Jena

NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO .894 OF 2021 … APPELLANT THE STATE OF JHARKHAND & ANR. …RESPONDENTS JUDGMENT SANJAY KISHAN KAUL J Hena Bibi respondent No.2 complainant claimed to be the legally married wife of the appellant the marriage having been solemnised on 8.2.2000 as per Muslim customs & rites. It may be noticed that the appellant was already married to one Mastra Bibi and he apparently had illicit relationship with respondent No.2 which culminated in their marriage The two parties are stated to have lived as husband and wife in the house of the appellant for about a year and a half and two children were born out of the said marriage It is the case of respondent No.2 that on the instigation of the first wife the appellant started mental and physical torture and made demands of dowry and respondent No.2 had to ultimately go back to her parents’ house It may be noticed that during this period that respondent No.2 conceived for the second time. It is not necessary to go into more details but suffice to say that the alleged demand of dowry resulted in PCR No.3106 being lodged in the Court of Sub Divisional Judicial Magistrate Pakur for offences under Section 498A of the Indian Penal Code The case went to trial and in terms of the judgment of the SDJM Pakur dated 30.1.2014 the appellant was held guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10 000 and in case of failure to pay the fine the appellant was directed to undergo further sentence of six months. The appellant preferred Criminal Appeal No. 07 2014 against the judgment of the SDJM which was dismissed vide judgment dated 02.09.2014 by the Principal District and Sessions Judge Pakur The appellant thereafter preferred a Criminal Revision against the said order being Criminal Revision No.1060 2014 and in terms of the impugned judgment dated 11 20.10.2020 the Criminal Revision was dismissed. The appellant thereafter preferred the Special Leave Petitionbefore this Court did duly surrender The appellant was called upon to surrender by this Court and he In the course of hearing of the SLP the petitioner appellant prayed for extension of the benefit of Probation of Offenders Act 1958 which was declined on 26.07.2021. However the Court expressed the view that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to respondent No.2 for herself and her children apart from whatever maintenance was being paid under Section 125 of the Code of Criminal Procedure 1973 In the proceedings dated 09.08.2021 learned counsel submitted on behalf of the appellant that he was willing to pay compensation of Rs.3.00 lakhs to respondent No.2 for herself and the children and requested for about six months’ time to raise the money. Since respondent No.2 did not put an appearance despite service learned counsel for the State was asked to verify the stand of respondent No.2. Learned counsel submitted that the police authorities had verified from respondent No.2 and she was agreeable to receive the compensation of Rs.3.00 lakhs. Further on compensation being paid she had agreed that if the sentence of the appellant is reduced and or if he is granted the benefit of the Probation of Offenders Act she has no objection. This was recorded in the proceedings held on 23.08.2021 and the certificate has been placed on record We have given thought to the matter. We have already noticed that keeping in mind the nature of the offence we had declined the benefit of the Probation of Offenders Act to the appellant. However if the petitioner appellant is showing remorse and is willing to make arrangements for respondent No.2 and his two children born out of the wedlock we would not like to come in the way of such an arrangement which should be beneficial to respondent No.2 and her children The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case it is one of voluntarily offering the amount albeit to seek a reduction of sentence We are informed that the appellant has now undergone about seven months of sentence and thus we are inclined to reduce the sentence to the period undergone in case the appellant pays to respondent No.2 for her benefit and her children’s benefit a sum of Rs.3.00 lakhs In view of the submission made by the petitioner on 09.08.2021 requesting for six months’ time to make arrangement to deposit pay the amount we direct that the appellant shall deposit with the trial court the amount of Rs.3.00 lakh on or before 28.2.2022 and subject to the deposit the period of sentence undergone shall be treated as the sentenced period The above mentioned amount of Rs.3.00 lakh shall be apart from the requirement of paying fine of Rs.10 000 directed by the trial court. We however make it clear that if the amounts are not deposited the appellant will have to undergo the remaining part of the sentence of 3 years On the deposit of the amount the trial court will take steps to release an amount of Rs.2.00 lakhs out of Rs.3.00 lakhs to respondent No.2 for herself and for her children. In order to secure the interest of the children a sum of Rs.50 000 each out of the remaining amount would be kept in an FDR with a nationalised bank for the benefit of the children. This amount will be released to them with accrued interest on attaining the age of 21 years The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs Sanjay Kishan Kaul August 31 2021

National Small Industries Corp. Ltd V/s. Harmeet Singh Paintal & Anr.

Vicarious liability can be attributed only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused/Director therein vicariously liable for the offence committed by the company.  The appellant – National Small Industries Corporation Ltd. had filed 12 criminal complaints under Section 138 read with Sections 141 and 142 of the Act against M/s Jay Rapid Roller Limited, a Company incorporated under the Companies Act, its Managing Director – Shri Sukhbir Singh Paintal, and its Director – Shri Harmeet Singh Paintal. It is the claim of the appellant that so as to make the Managing Director and Director of the Company liable to be prosecuted under the provisions of the Act, they had specifically averred in the complaint that all the accused persons approached it for financing of bill integrated market support programme.It was also stated that the accused persons had issued cheques which were dishonoured on presentation against which the appellant had filed criminal complaints under the provisions of the Act against all the respondents herein. It is their further case that all the accused persons accepted their liability and delivered various cheques, which are the subject matter of the present appeals.In the connected appeal, the appellant – DCM Financial Services Ltd., entered into a hire purchase agreement on 25.02.1996 with M/s International Agro Allied Products Ltd. At the time of entering into contract, the Company handed over post-dated cheques to the appellant towards payment of monthly hire/rental charges. Respondent No. 1 – Dev Sarin was one of the Directors of the said Company.The cheque issued by International Agro and Allied Products Ltd. in favour of the appellant was duly presented for payment on 28.10.1998 and the same was returned unpaid for the reason that the Company had issued instructions to the bankers stopping payment of the cheque. The appellant issued a legal notice on 05.12.1998 to the Company, Respondent No. 1 and other Directors under Section 138 of the Act informing them about the dis-honouring of the cheque in question. Despite the service of the notice, the Company did not make the payment to the appellant.The appellant, on 11.01.1999, filed a complaint before the Metropolitan Magistrate, New Delhi against respondent No. 1 and others under Section 138 read with Section 141 of the Act. By order dated 04.02.1999, the Metropolitan Magistrate, New Delhi, after recording evidence summoned the accused persons including respondent No. 1 herein.Respondent No. 1 filed an application before the Additional Sessions Judge, Delhi for dropping of proceedings against him. By order dated 08.09.2004, the Metropolitan Magistrate dismissed the said application. Aggrieved by the said order, the respondent filed a petition under Section 482 of the Criminal Procedure Code before the High Court for quashing of the complaint. The High Court, after finding that the averments against respondent No. 1 are unspecific and general and no particular role is assigned to the appellant, quashed the summoning order insofar as it concerned to him.The appellant was against the National Small Industries Corporation Limited against the common judgment and order dated 24.10.2007 passed by the High Court of Delhi at New Delhi in a batch of cases whereby the High Court quashed the summoning orders passed by the trial Court against respondent No.1 – Harmeet Singh Paintal, under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 whereby the  High Court quashed the summoning order passed by the trial Court against respondent No.1 -Dev Sarin under  Section 138 read with Section 141 of the Act.Since all these appeals are identical and same legal issues arise, they are being disposed of by this common judgment. ISSUE BEFORE THE COURT: Whether the order of the High Court quashing the summoning orders insofar as the respondents are concerned is sustainable and what should be the averments in the complaint under Section 138 read with Section 141 of the Act against the Director of a Company before he can be subjected to criminal proceedings?Whether the abovementioned complaint in both cases has satisfied the necessary ingredients to attract Section 141 insofar as the respondents, namely, Directors of the company are concerned? RATIO OF THE COURT The court observed that it is very clear from the provision that what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company.  Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in-charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action.It follows from the fact that if a Director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for a criminal offence under the provisions.  The liability arises from being in-charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company.The court observed that It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director.The court also held that the settled position is that a Managing Director is prima facie in-charge of and responsible for the company’s business and affairs and can be prosecuted for offences by the company. But insofar as other Directors are concerned, they can be prosecuted only if they were in-charge of and responsible for the conduct of the business of the companyThe court held that if the accused is not one of the persons who falls under the category of “persons who are responsible to the company for the conduct of the business of the company” then merely by stating that “he was in-charge of the business of the company” or by stating that “he was incharge of the day-to-day management of the company” or by stating that “he was in-charge of, and was responsible to the company for the conduct of the business of the company”, he cannot be made vicariously liable under Section 141 (1) of the Negotiable Instruments Act, 1881 (Act). To put it clear that for making a person liable under Section 141 (2), the mechanical repetition of the requirements under Section 141 (1) will be of no assistance, but there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and, therefore, responsible under sub-section (2) of Section 141 of the Act.In a catena of decisions, this Court has held that for making Directors liable for the offences committed by the company under Section 141 of the Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company.Therefore, this Court has distinguished the case of persons who are in-charge of and responsible for the conduct of the business of the company at the time of the offence and the persons who are merely holding the post in a company and are not in-charge of and responsible for the conduct of the business of the company.  Further, in order to fasten the vicarious liability in accordance with Section 141, the averment as to the role of the concerned Directors should be specific.  The description should be clear and there should be some unambiguous allegations as to how the concerned Directors were alleged to be in- charge of and was responsible for the conduct and affairs of the company.Furthermore, it held that vicarious liability can be attributed only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused/Director therein vicariously liable for the offence committed by the company.  It was further held that before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted.  Thus, the issue in the present case is no more res integra and has been squarely covered by the decisions of this Court referred above.  It is submitted that the aforesaid decisions of this Court have become binding precedents.  Though the Court then said that an averment in the complaint that the accused is a Director and in-charge of and responsible for the conduct of the business may be sufficient but this would not take away from the requirement that an overall reading of the complaint has to be made to see whether the requirements of Section 141 have been made out against the accused Director or not.  Furthermore, this decision cannot be said to have overruled the various decisions of this Court.The court laid down following principles:The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no 27 presumption that every Director knows about the transaction.Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.Vicarious liability on the part of a person must be pleaded and proved and not inferred.If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint.The person sought to be made liable should be incharge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. DECISION HELD BY COURT: The judgement of this case was given by JUSTICE P.SATHASIVAM that Apart from the legal position with regard to compliance of Section 141 of the Act, in the appeals of National Small Industries Corporation, respondent No.1Harmeet Singh Paintal was no more a Director of the company when the cheques alleged in the complaint were signed and the same is evidenced from the Sixth Annual report for the year 1996-1997of the accused company.In the light of the above discussion and legal principles, The court is in agreement with the conclusion arrived at by the High Court and in the absence of specific averment as to the role of the respondents and particularly in view of the acceptable materials that at the relevant time they were in no way connected with the affairs of the company, The court rejected all the contentions raised by learned counsel for the appellants. Consequently, all the appeals fail and are accordingly dismissed.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 320 336 OF 2010 Arising out of S.L.P.Nos. 445 4608 National Small Industries Corp. Ltd. .... AppellantNo. 10708 JUDGMENT P. Sathasivam J 1) Leave granted in all the above special leave petitions 2) The appeals arising out of S.L.P.Nos. 445 461 of 2008 have been filed by the appellant National Small Industries Corporation Limited against the common judgment and order dated 24.10.2007 passed by the High Court of Delhi at New Delhi in a batch of cases whereby the High Court quashed the summoning orders passed by the trial Court against respondent No.1 Harmeet Singh Paintal under Section 138 read with Section 141 of the Negotiable Instruments Act 1881In the connected appeal the appellant DCM Financial Services Ltd. entered into a hire purchase agreement on 25.02.1996 with M s International Agro Allied Products Ltd. At the time of entering into contract the Company handed over post dated cheques to the appellant towards payment of monthly hire rental charges. Respondent No.1 Dev Sarin was one of the Directors of the said Company. The cheque issued by International Agro and Allied Products Ltd. in favour of the appellant was duly presented for payment on 28.10.1998 and the same was returned unpaid for the reason that the Company had issued instructions to the bankers stopping payment of the cheque. The appellant issued a legal notice on 05.12.1998 to the Company Respondent No.1 and other Directors under Section 138 of the Act informing them about the dis honouring of the cheque in question. Despite the service of the notice the Company did not make the payment to the appellant. The appellant on 11.01.1999 filed a complaint before the Metropolitan Magistrate New Delhi against respondent No.1 and others under Section 138 read with Section 141 of the Act. By order dated 04.02.1999 the Metropolitan Magistrate New Delhi after recording evidence summoned the accused persons including respondent No.1 herein. Respondent No.1 filed an application before the Additional Sessions Judge Delhi for dropping of proceedings against him. By order dated 08.09.2004 the Metropolitan Magistrate dismissed the said application. Aggrieved by the said order the respondent filed a petition under Section 482 of the Criminal Procedure Code before the High Court for quashing of the complaint. The High Court after finding that the averments against respondent No.1 are unspecific and general and no particular role is assigned to the appellant quashed the summoning order insofar as it concerned to him. In this factual matrix the issue which arises for determination before this Court is whether the order of the High Court quashing the summoning orders insofar as the respondents are concerned is sustainable and what should be the averments in the complaint under Section 138 read with Section 141 of the Act against the Director of a Company before he can be subjected to criminal 8) Heard learned counsel for the appellants as well as the learned ASG and senior counsel for the respondents. Section 138 of the Act refers about penalty in case of dishonour of cheque for insufficiency of funds in the account. We are more concerned about Section 141 dealing with offences by Companies which reads as under: “141. Offences by companies.—(1) If the person committing an offence under Section 138 is a company every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government as the case may be he shall not be liable for prosecution under this Chapter 2) Notwithstanding anything contained in sub section where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.— For the purposes of this section — ‘company’ means any body corporate and includes a firm or other association of individuals and b) ‘director’ in relation to a firm means a partner in the It is very clear from the above provision that what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. It follows from the fact that if a Director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time will not be liable for a criminal offence under the provisions. The liability arises from being in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company 10) Section 141 is a penal provision creating vicarious liability and which as per settled law must be strictly construed. It is therefore not sufficient to make a bald cursory statement in a complaint that the Director arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent No.1 was in charge of or was responsible to the accused company for the conduct of its business. This is in consonance with strict interpretation of penal statutes especially where such statutes create vicarious liability. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. In a catena of decisions this Court has held that for making Directors liable for the offences committed by the company under Section 141 of the Act there must be specific averments against the Directors showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. 12) In the light of the above provision and the language used therein let us at the foremost examine the complainta filed by National Small Industries Corporation Limited and the DCM Financial Services Ltd. In the case of National Small Industries Corpn. Ltd. the High Court has reproduced the entire complaint in the impugned order and among other clauses clause 8 is relevant for our consideration which reads as under: “8. That the accused No. 2 is the Managing Director and accused No. 3 is the Director of the accused company. The accused No. 2 and 3 are the in charge and responsible for the conduct of the business of the company accused No. 1 and hence are liable for the offences.” In the case of DCM Financial Services Ltd. in complaint Annexure P2 the relevant clause is 13 which reads as under: “13. That the accused No. 1 is a Company Firm and the accused Nos. 2 to 9 were in charge and were responsible to the accused No. 1 for the conduct of the business to the accused No. 1 at the time when offence was committed. Hence the accused Nos. 2 to 9 in addition to the accused No. 1 are liable to be prosecuted and punished in accordance with law by this Hon’ble Court as provided by section 141 of the N.I. Act 1881. Further the offence has been committed by the accused No. 1 with the consent and connivance of the accused Nos. 2 to 9.” 14) Now let us consider whether the abovementioned complaint in both cases has satisfied the necessary ingredients to attract Section 141 insofar as the respondents namely Directors of the company are concerned. Section 141 of the Act has been interpreted by this Court in various decisions. As to the scope of Section 141 of the Act a three Judge Bench of this Court considered the following questions which had been referred to it by a two Judge Bench of this Court in SMS Pharmaceuticals vs. Neeta Bhalla and Anr. 8 “(a) Whether for purposes of Section 141 of the Negotiable Instruments Act 1881 it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of or responsible for the conduct of the business of the company b) Whether a director of a company would be deemed to be in charge of and responsible to the company for conduct of the business of the company and therefore deemed to be guilty of the offence unless he proves to the contrary c) Even if it is held that specific averments are necessary whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against.” While considering the above questions this Court held as “18. To sum up there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial 19. In view of the above discussion our answers to the questions posed in the reference are as under It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint the requirements of Section 141 cannot be said to be satisfied b) The answer to the question posed in sub parahas to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases c) The answer to Questionhas to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director these persons are in charge of and responsible for the conduct of business of the company. Therefore they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned he is clearly responsible for the incriminating act and will be covered under sub sectionof Therefore this Court has distinguished the case of persons who are in charge of and responsible for the conduct of the business of the company at the time of the offence and the persons who are merely holding the post in a company and are not in charge of and responsible for the conduct of the business of the company. Further in order to fasten the vicarious liability in accordance with Section 141 the averment as to the role of the concerned Directors should be specific. The description should be clear and there should be some unambiguous allegations as to how the concerned Directors were alleged to be in charge of and was responsible for the conduct and affairs of the company Sabitha Ramamurthy R.B.S. Channabasavaradhya 10 SCC 581 this Court while dealing with the same issue observed as under “ It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act 1956 is concerned only if the requisite statements which are required to be averred in the complaint petition are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable strict compliance with the statutory requirements would be insisted. Not only the averments made in para 7 of the complaint petitions do not meet the said statutory requirements the sworn statement of the witness made by the son of the respondent herein does not contain any statement that the appellants were in charge of the business of the Company. In a case where the court is required to issue summons which would put the accused to some sort of harassment the court should insist strict compliance with the statutory requirements. In terms of Section 200 of the Code of Criminal Procedure the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event ultimately the prosecution is found to be frivolous or otherwise mala fide the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of 16) In Saroj Kumar Poddar vs. State 2007) 3 SCC 693 while following SMS Pharmaceuticals case and Sabhita Ramamurthy case this Court held that with a view to make the Director of a company vicariously liable for the acts of the company it was obligatory on the part of the complainant to make specific allegations as are required under the law and under Section 141 of the Act and further held that in the absence of such specific averments in the complaint showing as to how and in what manner the Director is liable the complaint should not be entertained. The relevant portion of the judgment is reproduced “12. A person would be vicariously liable for commission of an offence on the part of a company only in the event the conditions precedent laid down therefor in Section 141 of the Act stand satisfied. For the aforementioned purpose a strict construction would be necessary 13. The purported averments which have been made in the complaint petitions so as to make the appellant vicariously liable for the offence committed by the Company read as under “That Accused 1 is a public limited company incorporated and registered under the Companies Act 1956 and Accused 2 to 8 are were its Directors at the relevant time and the said Company is managed by the Board of Directors and they are responsible for and in charge of the conduct and business of the Company Accused 1. However cheques referred to in the complaint have been signed by Accused 3 and 8 i.e. Shri K.K. Pilania and Shri N.K. Munjal for and on behalf of Accused 1 14. Apart from the Company and the appellant as noticed hereinbefore the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He as noticed hereinbefore had resigned from the directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known but even otherwise there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in para 3 thus in our opinion do not satisfy the requirements of Section 141 of the Act.” In a subsequent decision in N.K. Wahi vs. Shekhar Singh & Ors. 9 SCC 481 while following the precedents of SMS Pharmaceuticals’s case Sabhita Ramamurthy’s case and Saroj Kumar Poddar’s case this Court reiterated that for launching a prosecution against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. The relevant portion of the judgment is as under “7. This provision clearly shows that so far as the companies are concerned if any offence is committed by it then every person who is a Director or employee of the company is not liable. Only such person would be held liable if at the time when offence is committed he was in charge and was responsible to the company for the conduct of the business of the company as well as the company. Merely being a Director of the company in the absence of above factors will not make him liable 8. To launch a prosecution therefore against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. There should be clear and unambiguous allegation as to how the Directors are in charge and responsible for the conduct of the business of the company. The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable.” 18) The said issue again came up for consideration before a three Judge Bench of this Court recently in Ramraj Singh vs. State of M.P. & Anr. 6 SCC 729. In this case the earlier decisions were also considered in detail. Following the decisions of SMS Pharmaceuticals’ caseSabhita Ramamurthy’s caseSaroj Kumar Poddar’s case and N.K. Wahi’s case this Court held that it is necessary to specifically aver in a complaint under Section 141 that at the time when the offence was committed the person accused was in charge of and responsible for the conduct of the business of the company. Furthermore it held that vicarious liability can be attributed only if the requisite statements which are required to be averred in the complaint petition are made so as to make the accused Director therein vicariously liable for the offence committed by the company. It was further held that before a person can be made vicariously liable strict compliance of the statutory requirements would be insisted. Thus the issue in the present case is no more res integra and has been squarely covered by the decisions of this Court referred above. It is submitted that the aforesaid decisions of this Court have become binding precedents. In the case of second SMS Pharmaceuticals vs. Neeta Bhalla 4 SCC 70 this Court has categorically held that there may be a large number of Directors but some of them may not assign themselves in the management of the day to day affairs of the company and thus are not responsible for the conduct of the business of the company. reproduced hereunder: Para 20 of the said judgment is relevant which is “20. The liability of a Director must be determined on the date on `which the offence is committed. Only because Respondent 1 herein was a party to a purported resolution dated 15 2 1995 by itself does not lead to an inference that she was actively associated with the management of the affairs of the Company. This Court in this case has categorically held that there may be a large number of Directors but some of them may not associate themselves in the management of the day to day affairs of the Company and thus are not responsible for the conduct of the business of the Company. The averments must state that the person who is vicariously liable for commission of the offence of the Company both was in charge of and was responsible for the conduct of the business of the Company. Requirements laid down therein must be read conjointly and not disjunctively. When a legal fiction is raised the ingredients therefor must be satisfied.” 20) Relying on the judgment of this Court in Everest Advertising Pvt. Ltd. vs. State Govt. of NCT of Delhi & Ors. 5 SCC 54 learned counsel for the appellants argued that this Court has not allowed the recalling of summons in a criminal complaint filed under sections 138 and 141. However a perusal of the judgment would reveal that this case was of recalling of summons by the Magistrate for which the Magistrate had no jurisdiction. Further para 22 of the judgment would reveal that in the complaint “allegations have not only been made in terms of the wordings of section but also at more than one place it has categorically been averred that the payments were made after the meetings held by and between the representative of the Company and accused nos. 1 to 5 which would include Respondent Nos. 2 and 3.” In para 23 this Court concluded that “it is therefore not a case where having regard to the position held by the said respondents in the Company they could plead ignorance of the entire transaction”. Furthermore this Court has relied upon S.M.S. Pharamaceutical’s case(supra) Saroj Kumar Poddar’s caseand N.K. Wahi’s caseRelying on the judgment of this Court in N. Rangachari vs. Bharat Sanchar Nigam Ltd. 5 SCC 108 learned counsel for the appellants further contended that a payee of cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs and the Directors are prima facie in that position. However it is pertinent to note that in this case it was specifically mentioned in the complaint that accused no. 2 was a director and in charge of and responsible to the accused Company for the conduct of its business andthe response of accused no. 2 to the notice issued by BSNL that the said accused is no longer the Chairman or Director of the accused Company was false and by not keeping sufficient funds in their account and failing to pay the cheque amount on service of the notice all the accused committed an offence. Therefore this decision is clearly distinguishable on facts as in the said case necessary averments were made out in the complaint itself. Furthermore this decision does not and could not have overruled the decisions in S.M.S. Pharmaceutical’s case Ramraj Singh’s case Saroj Kumar Poddar’s case and N.K. Wahi’s case supra) wherein it is clearly held that specific averments have to be made against the accused Director 22) Learned counsel for the appellants after elaborately arguing the matter by inviting our attention to Paresh P. Rajda vs. State of Maharashtra & Anr. 7 SCC 442 contended that a departure digression has been made by the Court in the case of N. Rangachari vs. BSNL and observed that an observation therein showed a slight departure vis à vis the other judgments but then Court went on to record that in N.K. Wahi’s casethis Court had reiterated the view in S.M.S. Pharmaceutical’s case supra). The Court then concluded in para 11 that it was clear from the aforequoted judgments that the entire matter would boiled down to an examination of the nature of averments made in the complaint. On facts the Court found necessary averments had been made in the 23) Though the learned counsel for the appellants relying on a recent decision in K.K. Ahuja vs. V.K. Vora & Anr. 2009) 10 SCC 48 it is clearly recorded that in the complaint it was alleged that the accused were in charge of and was responsible for the conduct of the day to day business of the accused Company and further all the accused were directly and actively involved in the financial dealings of the Company and the same was also reiterated in the pre summoning evidence. Furthermore this decision also notes that it is necessary to specifically aver in a complaint that the person accused was in charge of and responsible for the conduct of the business of the Company. After noting Saroj Kumar Poddar’s case supra) and N.K. Wahi’s casethis Court further noted in para 9 that “ the prevailing trend appear to require the Complainant to state how a Director who is sought to be made an accused was in charge of the business of the Company as every Director need not be and is not in charge of the business of the Company…..”. In Para 11 this Court has further recorded that “…..When conditions are prescribed for extending such constructive criminal liability to others courts will insist upon strict literal compliance. There is no question of inferential or implied compliance. Therefore a specific averment complying with the requirements of Section 141 is imperative…” Though the Court then said that an averment in the complaint that the accused is a Director and in charge of and responsible for the conduct of the business may be sufficient but this would not take away from the requirement that an overall reading of the complaint has to be made to see whether the requirements of Section 141 have been made out against the accused Director or not. Furthermore this decision cannot be said to have overruled the various decisions of this Court 24) Section 291 of the Companies Act provides that subject to the provisions of that Act the Board of Directors of a company shall be entitled to exercise all such powers and to do all such acts and things as the company is authorized to exercise and do. A company though a legal entity can act only through its Board of Directors. The settled position is that a Managing Director is prima facie in charge of and responsible for the company’s business and affairs and can be prosecuted for offences by the company. But insofar as other Directors are concerned they can be prosecuted only if they were in charge of and responsible for the conduct of the business of the company. A combined reading of Sections 5 and 291 of Companies Act 1956 with the definitions in clauses 24 26 30 31 and 45 of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company a) the Managing Director s b) the whole time Director s c) the Manager d) the Secretary e) any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act any person charged by the Board of Directors with the responsibility of complying with that provision Provided that the person so charged has given his consent in this behalf to the Board g) where any company does not have any of the officers specified in clausestoany director or directors who may be specified by the Board in this behalf or where no director is so specified all the directors Provided that where the Board exercises any power under clauseor clauseit shall within thirty days of the exercise of such powers file with the Registrar a return in the prescribed form. But if the accused is not one of the persons who falls under the category of “persons who are responsible to the company for the conduct of the business of the company” then merely by stating that “he was in charge of the business of the company” or by stating that “he was in charge of the day to day management of the company” or by stating that “he was in charge of and was responsible to the company for the conduct of the business of the company” he cannot be made vicariously liable under Section 141(1) of the Act. To put it clear that for making a person liable under Section 141(2) the mechanical repetition of the requirements under Section 141(1) will be of no assistance but there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and therefore responsible under sub section 2) of Section 141 of the Act 25) From the above discussion the following principles emerge : i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability there is no presumption that every Director knows about the ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who at the time of the commission of the offence were in charge of and were responsible for the conduct of the business of the company iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act 1956 only if the requisite statements which are required to be averred in the complaint petition are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases 26) Apart from the legal position with regard to compliance of Section 141 of the Act in the appeals of National Small Industries Corporation respondent No.1 Harmeet Singh Paintal was no more a Director of the company when the cheques alleged in the complaint were signed and the same is evidenced from the Sixth Annual Report for the year 1996 97 of the accused company. The said report is of dated 30.08.1997 and the same was submitted with the Registrar of Companies on 05.12.1997 and assigned as document No. 42 dated 09.03.1998 by the Department. Those documents have been placed before this Court by respondent No.1 as an additional document. In view of these particulars and in addition to the interpretation relating to Section 141 which we arrived at no liability could be fastened on respondent No.1. Further it was pointed out that though he was an authorized signatory in the earlier transactions after settlement and in respect of the present cause of action admittedly fresh cheques were not signed by the first respondent. In the same way in the appeal of the DCM Financial Services the respondent therein namely Dev Sarin also filed additional documents to show that on the relevant date namely the date of issuance of cheque he had no connection with the affairs of the company. In the light of the above discussion and legal principles we are in agreement with the conclusion arrived at by the High Court and in the absence of specific averment as to the role of the respondents and particularly in view of the acceptable materials that at the relevant time they were in no way connected with the affairs of the company we reject all the contentions raised by learned counsel for the appellants. Consequently all the appeals fail and are accordingly dismissed. ... …J. (H.L. DATTU) NEW DELHI FEBRUARY 15 2010

The charges levied under MCD Act for unauthorized parking is applicable for hawking and not for illegal parking in a public place: High Court of Delhi

The charges levied for unauthorized parking would be applicable only in case there is menace of encroachment on municipal land by various squatters, hawkers, shopkeepers, rehriwalah and does not have any application insofar illegal parking of a vehicle on a public street or municipal land is concerned. The charges deal with illegal encroachment by shopkeepers/hawkers who encroach upon public streets as well as municipal land for the purposes of hawking or exposing for sale as mentioned in Section 322 of the MCD Act and not to a case of alleged illegal parking in a public place and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE SANJEEV SACHDEVA in the case of SMT. SUNITA BHALLA vs. SOUTH DELHI MUNICIPAL CORPORATION [W.P.(C) 2178/2022] on 03.03.2022. The facts of the case are that the late husband of the petitioner was the registered owner of the vehicle, RTV mini bus and after his demise, the vehicle was parked in the authorized parking lot of Metro Station, Dwarka, Sector -14. Petitioner and her family members went to their parents’ house in Chhattisgarh for performing of last rites. When petitioner returned, she came to know that the vehicle had been removed from the parking lot by the officials of the respondent. She visited the office of the respondent alongwith her son seeking release of the vehicle. However, respondent demanded a huge amount as charges for release of the vehicle and since she had lost her husband, she could not deposit the same. The petitioner’s counsel contended that demand of charges is illegal and contrary to law. The petitioner repeatedly visited the office of the respondent but the vehicle has not been released and the demand is in several lakhs of rupees. The respondent’s counsel submitted that the parking site was an authorized parking lot. Since the vehicle was an abandoned vehicle, respondent/Corporation in terms of the directions issued by judgment Umesh Sharma vs. Government of NCT of Delhi was authorized to remove the said abandoned vehicle from the public place and consequently, the said vehicle was removed. It was further submitted that the charges levied for unauthorized parking and for return of the vehicle after removal are in accordance with the circular dated 29.08.2018. The Court held that respondents to forthwith release the vehicle as there is no material placed on record by the respondent to show that any public notice was placed in the parking lot or any communication issued to the petitioner that the parking lot was no longer a free parking place and charges would be levied for such parking. The Court observed that, “the charges levied for unauthorized parking would be applicable only in case there is menace of encroachment on municipal land by various squatters, hawkers, shopkeepers, rehriwalah and does not have any application insofar illegal parking of a vehicle on a public street or municipal land is concerned. The charges deal with illegal encroachment by shopkeepers/hawkers who encroach upon public streets as well as municipal land for the purposes of hawking or exposing for sale as mentioned in Section 322 of the MCD Act and not to a case of alleged illegal parking in a public place.” Click here to read the Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 03.03.2022 W.P.(C) 2178 2022 SMT. SUNITA BHALLA ...... Petitioner SOUTH DELHI MUNICIPAL CORPORATION....Respondent Advocates who appeared in this case: For the Petitioner: Mr. Ishan Sanghi Advocate. For the Respondent: Mr. Vikrant N. Goyal Advocate for SDMC CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.Petitioner seeks a direction to respondent to release vehicle No. DL1VC 0201which is in the name of late husband of the petitioner Mr. Ashwani Kumar Bhalla. Learned counsel for the petitioner submits that petitioner is a widow whose husband has expired recently on 24.07.2021 and the petition has been filed through legal aid. W.P.(C) 2178 2022 3. It is contended in the petition that late husband of the petitioner was the registered owner of the said vehicle RTV mini bus and after the demise of her husband the vehicle was parked in the authorized parking lot of Metro Station Dwarka Sector 14. It is stated that petitioner and her family members went to their parents’ house in Chhattisgarh for performing last rites of late Mr. Ashwani Kumar Bhalla. When petitioner returned after performing the last rites of her husband she came to know that the vehicle had been removed from the parking lot by the officials of the respondent. It is contended that on 14.10.2021 she visited the office of the respondent alongwith her son seeking release of the vehicle. However respondent demanded a huge amount as charges for release of the vehicle and since she had lost her husband she could not deposit the same. It is further contended that demand of charges is illegal and contrary to law. Thereafter it is contended that Petitioner had repeatedly visited the office of the respondent but the vehicle has not been released and the demand is in several lakhs of rupees. Learned counsel for the petitioner submits that the husband of the petitioner had availed of a loan facility and petitioner is unable to discharge the loan because the vehicle is seized by the respondents. W.P.(C) 2178 2022 8. Learned counsel for the petitioner relies on the decision of this Court dated 26.07.2021 in W.P. 3755 2021 titled Rahul Kumar Vs. East Delhi Municipal Corporation of Delhi. Learned counsel appearing for the respondent Corporation submits that the parking site was an authorized parking lot. However the contractor on 04.09.2020 surrendered the parking site on account of lack of business. It is submitted that the parking site remained a free parking from 04.09.2020 till 30.09.2021. 10. Respondent started operating the parking on the said site with effect from 01.10.2021. 11. Learned counsel further submits that since the vehicle was an abandoned vehicle respondent Corporation in terms of the directions issued by judgment dated 25.09.2019 in W.P. 2029 2018 titled Umesh Sharma Vs. Government of NCT of Delhi was authorized to remove the said abandoned vehicle from the public place and consequently the said vehicle was removed. 12. Learned counsel for respondent submits that charges levied for unauthorized parking and for return of the vehicle after removal are in accordance with the circular dated 29.08.2018. 13. Learned counsel submits that as on date the petitioner has to pay approximately Rs.15 lakhs for return of the said vehicle. W.P.(C) 2178 2022 14. Learned counsel for respondents submits that a Letters Patent Appeal has been filed against the judgment in Rahul Kumar being LPA No.382 2021. He however concedes that there is no interim stay of the judgment by the Division Bench. It may be noticed that the petitioner has placed on record a parking slip to show that the vehicle was being parking in the said parking lot on monthly basis. 16. The admitted case of the parties is that the place where the vehicle was parked is an authorized parking lot and not a public street or an abandoned place. 17. The case of the respondent as emanating from the counter affidavit is that the earlier contractor had surrendered the parking lot and thereafter the parking remained free from 04.09.2020 till 30.09.2021 and respondent started operating fastag parking with effect from 01.10.2021. 18. The contention of the respondent that the vehicle was abandoned and as such they are covered by the judgment of the Division Bench of this Court in Umesh Sharmais contradicted by the counter affidavit itself. the counter affidavit is contended that verbal communication was made to the owners who had parked their W.P.(C) 2178 2022 vehicles without authorized parking slips and were conveyed to remove the vehicle from the site. 20. With regard to the petitioner it is specifically stated that petitioner was also conveyed to remove the vehicle which was parked on the said site since a long time and whose fitness had also expired on 25.08.2021 and was left abandoned in the parking area without any authorized parking slip. 21. Case of the respondent is that they had conveyed to the petitioner to remove the subject vehicle. However the date when petitioner was communicated to remove the vehicle and the manner in which such information was conveyed is not borne out from the affidavit. 22. Further the fact that the respondents were aware as to who is the owner of the vehicle shows that the vehicle was not a vehicle abandoned in a public place so as to be covered by the judgment in Umesh Sharma2178 2022 There is no material placed on record by the respondent to show that any public notice was placed in the parking lot or any communication issued to the petitioner that the parking lot was no longer a free parking place and charges would be levied for such parking. 25. As per the respondents the vehicle was towed on 08.10.2021. The case of the petitioner is that the petitioner had visited the office of the respondent for release of the vehicle on 14.10.2021 which is within six days from the vehicle being towed however the vehicle was not released. dated 29.08.2018. Insofar demand of approximately of Rs.15 lakhs as charges are concerned the same are sought to be claimed in terms of circular 27. The said issue is squarely covered by the judgment of this Court dated 26.07.2021 in Rahul Kumarwherein a similar circular issued by East Delhi Municipal Corporation was considered by this Court. 28. This Court has held that the said circular would be applicable only in case there is menace of encroachment on municipal land by various squatters hawkers shopkeepers rehriwalah and does not have any application insofar illegal parking of a vehicle on a public street or municipal land is concerned. W.P.(C) 2178 2022 29. As held in Rahul Kumar the wording of the Circular relied upon by the Respondents as well as the various heads under which impugned charges are sought to be recovered from the petitioner show they deal with illegal encroachment by shopkeepers hawkers who encroach upon public streets as well as municipal land for the purposes of hawking or exposing for sale as mentioned in Section 322 of the MCD Act and not to a case of alleged illegal parking in a public place. 30. No circular has either been produced or relied upon by learned counsel for the respondent which deals with imposition of any charges for illegal parking on street municipal land. 31. Further admittedly no show cause notice has been given to the petitioner requiring her to remove the vehicle from the said parking lot. 32. The case of the petitioner is squarely covered by the judgment in the case of Rahul Kumar however there is no stay of the said judgment by the Division Bench. 33. Further the contention of the respondent that vehicle had been abandoned since the fitness had expired does not hold any merit for the reason that Government of NCT of Delhi had by way of a general W.P.(C) 2178 2022 notification extended validity of all documents whose validity was expiring during the period of lockdown. Consequently the validity of fitness certificate would also stand extended in terms of the notification of the Government of NCT of Delhi. 34. Clearly in view of the above the action of the respondent in seizing the vehicle of the petitioner and raising a demand of about Rs.15 lakhs on the petitioner for release of the vehicle cannot be In view of the above the petition is allowed. The respondents are directed to forthwith release the vehicle bearing registration number DL1VC 02012178 2022

Where transgression is established u/s 25F of Industrial Disputes Act, 1947, an appropriate remedy is compensation and not reinstatement: High Court of Delhi

Reinstatement with full back wages is not an automatic rule in every case where termination/ dismissal is found to be not in accordance with procedure prescribed under law. Reinstatement is not an automatic consequence of wrongful termination, especially when the Workman has, during the pendency of litigation, not performed any services with the Management. In other words, since, reinstatement cannot be automatic, and if the transgression of Section 25F is established, then suitable compensation would be the appropriate remedy. These were stated by High Court of Delhi consisting, Justice Prathiba M. Singh in the case of Ms. Vandana vs. M/S HBL Globel Pvt. Ltd. [W.P.(C) 2359/2020] on 20.01.2022. The facts of the case are that the Petitioner was employed as a Tele-caller with the Respondent Management. Till 2012, she had rendered her services regularly. However, due to medical issues arising out of miscarriage which she is stated to have undergone in June, 2012, she had remained absent from work. This resulted in the Management terminating her services. However, upon filing a complaint with the Labour Commissioner, she was taken back into service. It was the case of the Petitioner that post her termination in 2012, when she joined back, the Management started sending various warning letters to her, and she was finally terminated on 30th December, 2014. The said termination was challenged by the Petitioner before the Labour Court, wherein she prayed for reinstatement with continuity of service and full back wages along with all consequential benefits. The termination was held to be illegal, however, only compensation was awarded in lieu of reinstatement in service. The Management has paid the sum awarded. But the Petitioner has challenged the award and prays that she ought to be reinstated. The Counsel for the petitioner submitted that the Labour Court completely erred in not granting reinstatement in service along with full back wages. She submitted that the conclusion of the Labour Court clearly shows that the petitioner was victimized and harassed unnecessarily by the Management. Since there as was no specific allegation of misbehaviour or insubordination and the termination of service was held to be illegal reinstatement with full wages ought to be granted. The Counsel for the respondent submitted that the Petitioner had received various letters showing that she was under-performing, and the said letters were placed on record before the Labour Court. However, the same have been ignored by simply stating that no specific incident of indiscipline and misconduct was pointed out by the Management. She emphasises the fact that the letters were written way back in 2009. Thus, it is wrong to suggest that the Management had a grievance against the Petitioner, only due to her absence from work at the time of her miscarriage. It was further submitted that in every case where the termination of service has been held to be illegal, reinstatement of service was not granted automatically. The High Court of Delhi held that there was no specific incident of insubordination or unsatisfactory performance which was pointed out by the Management. No evidence of colleagues or customers was produced to establish the said allegations. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The question of back wages, however, has to be considered depending on the length of service, nature of misconduct, etc. Nevertheless, the reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law. Reinstatement is not an automatic consequence of wrongful termination, especially when the Workman has, during the pendency of litigation, not performed any services with the Management. In other words, since, reinstatement cannot be automatic, and if the transgression of Section 25F is established, then suitable compensation would be the appropriate remedy. Therefore, the Court, in the present found it reasonable to grant a further compensation of Rs.1 lakh to the petitioner. With the above observations, the present petition was disposed of.

18 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20th January 2022 MS. VANDANA W.P.(C) 2359 2020 Through: Ms. K.B. Hina Advocate. ..... Petitioner M S HBL GLOBEL PVT. LTD. Through: Ms. Romila Joshi Advocate. ..... Respondent JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. The present petition has been filed challenging the impugned Award dated 15th October 2019 passed by the Labour Court in LC DID No.408 16 titled Ms. Vandana v. M s. HBL Globel Pvt. Ltd. By the impugned Award the Petitioner Workman who had challenged the termination of her services was awarded a sum of Rs.1 02 420 instead of reinstatement in service with full back wages and continuity of service along with all the consequential benefits as prayed for in the claim petition. The background of the present petition is that the Petitioner was employed as a Tele caller on 13th August 2008 with the Respondent Management 2359 2020 services. However upon filing a complaint with the Labour Commissioner she was taken back into service. It was the case of the Petitioner that post her termination in 2012 when she joined back the Management started sending various warning letters to her and she was finally terminated on 30th December 2014. The said termination was challenged by the Petitioner before the Labour Court wherein she prayed for reinstatement with continuity of service and full back wages along with all consequential benefits. The following issues were framed in the said proceedings before the Labour Court: “1. Whether the claimant workman is not a workman as defined under Section 2(s) of the industrial Disputes Act 1947O.P.M. 2. Whether the performance of the claimant workman was not up to the mark and she was asked to improve her performance and she was issued various warning letters by the management but the claimant did not improve her performance despite various letters of the management to this effect if so its effect O.P.M. 3. Whether the claimant workman was directed by the management to show quantitative and qualitative improvement in her performance vide its letters but the claimant workman failed to improve rather she indulged into the acts of indiscipline and misconduct during the course of her employment and discharge of her duty and started absenting from quality training session and refused to abide by the directions given to her by her seniors as alleged by the management if so its effect O.P.M. to be the claimant was 4. Whether unprofessional and callous while making dialer calls to the customer and was found busy chatting and interacting with her colleagues and made a W.P.(C) 2359 2020 disrespectful comment about a deceased customer if so its effect O.P.M. the claimant was 5. Whether the claimant wrote false and frivolous letters making baseless allegations against the various employees of the management to the management as alleged by the management if so its effect O.P.M. 6. Whether management vide its letter dated 26.12.2014 that her services shall be terminated w.e.f. 31.12.2014 and subsequently one month salary amounting to Rs. 13100 was credited in to the bank account of the claimant towards notice pay as per the terms and conditions of employment as claimed by management O.P.M. informed by 7. Whether the full and final settlement amount of the claimant was credited into her account maintained with HDFC Bank on 02.01.2015 and the was intimated to the claimant vide letter dated 03.01.2015 and further on 07.01.2015 an amount of Rs.26 180 was also credited Into the account of the claimant towards the gratuity payable regarding the same through letter dated 08.01.2015 if so its effect O.P.M. 8. Whether terminated by unjustifiably as claimed by the workman O.P.W. the workman were illegally and to her and she was the management the services of 9. Whether the workman is entitled to the relief claimed in the statement of claim O.P.W. 10. Relief.” The Labour Court held in favour of the Petitioner on most issues. The termination was held to be illegal however only compensation was awarded in lieu of reinstatement in service. The Management has paid the sum awarded. But the Petitioner has challenged the award and prays that she W.P.(C) 2359 2020 ought to be reinstated. Submissions of the Parties: 5. Ms. K.B. Hina appearing as Legal Aid counsel on behalf of the Petitioner Workman submits that the Labour Court has completely erred in not granting reinstatement in service along with full back wages. She submits that the conclusion of the Labour Court clearly shows that the Petitioner was victimized and harassed unnecessarily by the Management. Since there as was no specific allegation of misbehaviour or insubordination and the termination of service was held to be illegal following the judgment of the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya & Ors. reinstatement with back wages ought to have been granted. Reliance is placed upon paragraph 33 of the said judgment which has been extracted below: “33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service reinstatement with continuity of service and back wages is the normal rule. ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages the adjudicating authority or the Court may take into consideration the length of service of the employee workman the nature of misconduct if any found proved against the employee workman the financial condition of the employer and similar other factors. iii) Ordinarily an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he she was not gainfully W.P.(C) 2359 2020 employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages then it has to plead and also lead cogent evidence to the employee workman was gainfully employed and was getting wages equal to the wages he she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore once the employee shows that he was not employed the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court Industrial Tribunal exercises power Under Section 11 A of the Industrial Disputes Act 1947 and finds that even though the enquiry held against the employee workman is consistent with the rules of natural justice and or certified standing orders if any but holds that the punishment was disproportionate to the misconduct found proved then it will have the discretion not to award full back wages. However if the Labour Court Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge then there will be ample justification for award of full back wages. v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and or the principles of natural justice or is guilty of victimizing the employee or workman then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by W.P.(C) 2359 2020 to pay the employer and sufferer the Labour Court etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee workman to get full back wages or the employer s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful illegal termination of service the employee workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden employee workman his dues in the form of full back vi) In a number of cases the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases the employer is in an advantageous position vis à vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private LimitedThe observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement employee workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of W.P.(C) 2359 2020 three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the the very concept of reinstatement of an is also against On the other hand Ms. Romila Joshi ld. Counsel appearing for the Management submits that the Petitioner Workman had received various letters showing that she was under performing and the said letters were placed on record before the Labour Court. However the same have been ignored by simply stating that no specific incident of indiscipline and misconduct was pointed out by the Management. She emphasises the fact that the letters were written way back in 2009 even before the Petitioner’s alleged miscarriage is stated to have taken place for which no medical records have been filed. Thus it is wrong to suggest that the Management had a grievance against the Petitioner only due to her absence from work at the time of her miscarriage. In fact the performance of the Petitioner was not satisfactory which is evident from the letters dated 1st April 2009 24th August 2009 20th October 2009 3rd December 2009 and 1st April 2010. In this letter the grade and the compensation package qua the Petitioner was restructured and it was clearly intimated to her that her performance was not satisfactory. On the basis of these letters which went on to be addressed to the Petitioner till the years 2012 2014 the Management claims that the services of the Petitioner were not satisfactory and the termination of her services was legal. 7. Ms. Joshi ld. Counsel further argues that in every case where the termination of service is held to be illegal it is not necessary that reinstatement in service has to be granted automatically. Reliance is placed W.P.(C) 2359 2020 upon the judgement of the Supreme Court in Municipal Council Sujanpur v. Surinder Kumaras also the judgment of the Delhi High Court in Vinod Kumar and Ors. v. Salwan Pubic School & Ors.of the Industrial Disputes Act 1947. Hence the impugned Award deserves no interference. Analysis & Findings: Heard ld. Counsels for the parties. Admittedly there is enormous Respondent Management. The Petitioner was terminated way back in the year 2014 and by that time she had rendered six years of service. Even if the period between the years 2008 to 2012 is considered she had rendered uninterrupted service to the Management for a period of four years. A perusal of the record shows that sometime during the year 2012 due to various reasons which need not be gone into in the present petition the Petitioner had absented herself from work and the first round of dispute had taken place between the Management and the Petitioner. Thereafter she was then reinstated with the Management and continued to work with the Management till 2014. However in respect of this period a large number of letters have been placed on record by the Management which purportedly allege that the performance of the Petitioner was not satisfactory. 10. After perusing the evidence which was led before it the labour court gave the following findings on each of the issues: Issue No.1 In respect of the question as to whether the Petitioner was a Workman under W.P.(C) 2359 2020 Issue No.2 Section 2(s) of the Industrial Disputes Act 1947 the Labour Court held the Petitioner to be a Workman as defined under the said provision. Thus Issue No.1 was decided in favour of the Petitioner and against the Management. In respect of the issue as to the performance of the Petitioner not being up to the mark and the warning letters which were served upon her for improving her performance the Labour Court came to the conclusion that the Management failed to establish that the Petitioner was under performing. It appeared to the labour court that the intention of the Management was to somehow get rid of the Petitioner. Thus Issue No.2 was decided in favour of the Petitioner and against the Management. Issue No.3 In respect of the issue as to whether she was absenting herself from quality improvement training sessions wrongfully and was guilty of indiscipline and misconduct the Labour Court held that the Management could not establish the same. Further the Petitioner had a valid reason not to attend the quality improvement training sessions as she had an infant daughter. Thus Issue No.3 was decided in favour of the Petitioner and against the Management. Issue No.4 In respect of the issue as to the Petitioner’s unprofessional and callous attitude in her interaction with her colleagues and customers the Labour Court held that the Management did not lead any evidence of customers or colleagues to establish the same. Thus Issue No.4 was decided in favour of the Petitioner and against the Management. Issue No.5 In respect of the allegations raised by the Management that the Petitioner W.P.(C) 2359 2020 had written false and frivolous letters making baseless allegations against the Management after examining some of the said letters on record the Labour Court came to the conclusion that insofar as supply of PCs and the software is concerned it was clear that the Petitioner was not raising any false or frivolous allegations. Thus Issue No.5 was decided in favour of the Petitioner and against the Management. Issue Nos. 6 and 7 These two issues were taken up together. In respect of these two issues the Management relied upon various letters stated to be written by them to the Petitioner. The Petitioner denied the receipt of the said letters. However the Labour Court held that the said letters were received by the Petitioner inasmuch as it was sent properly and the proof of dispatch was also placed on record. Thus these two issues were disposed of in the above terms. Issue No.8 On the question of illegal termination which was considered as Issue No.8 the Labour Court holds that after she was taken back in 2012 various communications were addressed to her. However there was no specific incident of insubordination or unsatisfactory performance which was pointed out by the Management. No evidence of colleagues or customers was produced to establish the said allegations. Thus Issue No.8 was decided in favour of the Petitioner and against the Management. The Labour Court’s conclusion on this issue is crucial and is set out below: “Issue no. 8. Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman O.P.W. The onus to prove this issue was upon the claimant worklady. From the pleadings as well as the W.P.(C) 2359 2020 evidence adduced by the parties it is an admitted position on record that the services of the claimant were dispensed with by the management earlier also in the year 2012 when she had returned back for her duties in the month of August 2012 after availing medical leaves and thereafter when she had filed the case before the Labour Commissioner then only the management had taken her back on job. It shall be interesting to see that after taking her back on job frequency of management s issuing her so called warning letters asking the claimant to improve her quality and quantity of performance had increased enormously. It shall be further pertinent to note here that in none of the aforesaid communication as placed on record neither any specific incident of her performance in discharge of her official duties or the manner and mode of her callous attitude in discharge of her duties was mentioned or explained except one incident of her leaving a caller online or that of making a comment about one of the deceased customers. claimant s However in context of these incidents as well neither any customer nor any co employee of the claimant was examined by the management to prove the same on record even by preponderance of Furthermore though management had talked about the conduct of quality improvement training sessions for the claimant and claimant had also admitted about attending in her communication Mark B. However no performance communicated to her nor it was placed on record in in her the present case performance. to show any decline claimant was those sessions report of For a prudent mind it is not very difficult to W.P.(C) 2359 2020 understand the plight of an employee who had been taken back on the job by the management under certain compulsions and the anxiety of the management in getting rid of such an employee at the earliest opportunity available to it. services of Although the management could not be held to have indulged into any illegal act while dispensing the claimant however straightaway dispensing with her services without even chargesheeting her or conducting or holding any inquiry against her for her alleged misconduct and gross insubordination could not be held to be justified either. Therefore this issue is answered in affirmative while holding the termination of the services of the claimant by to be unjustified amounting to her retrenchment and decided in favour of the claimant and against the management.” the management Issue No.9 On this issue as to whether the Petitioner is entitled to the relief as claimed the Labour Court arrived at the conclusion that both the parties are extremely animus towards each other. It would not be in the fitness of things to allow the reinstatement in service as they do not enjoy a good relationship. Considering the bitterness in the relationship between the parties Issue No.9 was decided in favour of the Petitioner and against the Management. However instead of reinstatement in service the Workman was held to be entitled to compensation as provided under Section 25F of the Industrial Disputes Act 1947. Relief awarded by the Labour Court: 11. Considering the facts and circumstances of the case the Labour Court found it appropriate to grant relief to the Petitioner Workman in the W.P.(C) 2359 2020 following manner: “In view of my findings to the above issues it is categorically clear that the claimant had joined the services of the management on 13.08.2008 and had continued to work till 30.12.2014 because once the management had taken her back in its employment in the year 2012 that would have amounted to continued and uninterrupted service of the claimant with the management. As such the claimant was entitled to compensation under Section 25(F) for her services rendered for a period of 6 years which fact the management had also recognized in the present case by paying her an amount of Rs. 26 180 towards her favour of Therefore an award for the following reliefs is passed management: the claimant and against 1. an amount of Rs. 13 100 is awarded in favour of the claimant for her one month s notice pay 2. the gratuity for the period of six years calculated at the rate of three month s salary after deducting the amount already paid by the management amounting to Rs. 13 120 is also awarded in favour of the claimant3. the retrenchment compensation @ 15 days average salary for each completed year of continuous service amounting Rs. 39 300 is also awarded in favour of the claimant 4. compensation towards incentive overtime and bonus as management had failed to prove her under performance on record for W.P.(C) 2359 2020 the relevant period amounting to Rs. 50 000 is also awarded. In favour of the claimant Accordingly an award the amount of Rs.1 02 420 is passed in favour of the claimant and against the management and management is directed to pay the above said amount to the claimant within 30 days of publication of this award failing which the above said amount shall also be carrying an interest @ 8 percent per annum till the date of its realization. Statement of claim as filed by the claimant is allowed and disposed of accordingly. Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.” 12. The Management has honoured the impugned Award dated 15th October 2019 and has admittedly paid the entire awarded sum. The Petitioner however has preferred the present petition challenging the relief which was granted by the Labour Court. From the findings discussed above the labour Court has held that the termination of the Petitioner’s services was illegal and there was a concerted effort made to somehow ensure that she can be removed from service. This finding of the Labour Court has been clearly held in answer to Issue No.8 and is not under challenge. Thus the illegality of the termination not being under challenge the only question which this Court is primarily considering is whether the compensation awarded to the Petitioner is just and reasonable or whether the Petitioner is entitled to the relief of reinstatement in service with back wages as sought in the claim petition. 13. The judgments in Municipal Council Sujanpuras also Vijay Kumarcited by the Management clearly hold that reinstatement in service is not automatic whenever the termination of service is held to be W.P.(C) 2359 2020 illegal. In Deepali Gundu Surwase the Supreme Court observed that in cases of wrongful termination of service reinstatement with continuity of service and back wages is the normal rule. The question of back wages however has to be considered depending on the length of service nature of misconduct etc. 14. However in its recent decisions the Supreme Court has held that reinstatement in service need not be granted in all cases of illegal termination of service and reasonable compensation in lieu of reinstatement may be granted by the Court depending upon the facts and circumstances of each case. In Allahabad Bank and Ors. v. Krishan Pal Singh No. 19648 2019 decided on 20th September 2021) held as under: the pendency of “8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During proceedings the respondent workman had attained age of superannuation. Though there was strong suspicion there was no acceptable evidence on record for dismissal of the workman. However as the workman has worked only for a period of about six years and he has already attained the age of superannuation it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case where termination dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991 and in the meantime respondent had attained age of superannuation we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We W.P.(C) 2359 2020 accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent within a period of eight weeks from today. Failing to pay the same within the aforesaid period the respondent is entitled for interest @ 6% per annum till payment.” 16. Thus the Supreme Court has clearly recognised the fact that reinstatement is not an automatic consequence of wrongful termination especially when the Workman has during the pendency of litigation not performed any services with the Management. The Supreme Court has accordingly awarded lump sum compensation in lieu of reinstatement. 17. Even in Ranbir Singh v. Executive Eng. P.W.D. wherein it was observed as under: “6. .…In other words we find that reinstatement cannot be automatic and the transgression of Section 25F being established suitable compensation would be the appropriate remedy. 7. In such circumstance noticing that though the appellant was reinstated after the award of the Labour Court in 2006 the appellant has not been working since 2009 following the impugned order and also taking note of the fact that likelihood employed in all the appellant was otherwise also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000 as lumpsum compensation appellant be paid Rs.3.25 lakhsas compensation consideration also the fact that the appellant had already been paid Rs. 25000 as compensation.” 18. Similar is the view of the Supreme Court in Ram Manohar Lohia Joint Hospital and Ors. v. Munna Prasad Saini and Ors. 2359 2020 LLR 681]. 4400] as also in Madhya Bharat Gramin Bank v. Panchamlal Yadav2359 2020 case to award a further compensation of Rs.1 lakh to the Petitioner along with Rs.50 000 as litigation expenses. 22. Let the said amount of Rs. 1 50 000 be paid by Respondent Management to the Petitioner Workman within eight weeks failing which the said amount would be payable along simple interest at 7% per annum. 23. With the above observations the present petition along with all pending applications is disposed of. The impugned Award dated 15th October 2019 stands modified in the above terms. JANUARY 20 2022 corrected & released on 24th January 2022) PRATHIBA M. SINGH J W.P.(C) 2359 2020

Bail granted subject to conditions: Kerala High Court

In a recent bail application, the Kerala High Court granted bail to the accused on certain conditions specifying the extent to which the conditions would prevail. This was ruled out by Hon’ble Justice Gopinath P. in the matter concerning Shafaseer PP v State of Kerala & Ors.  in BAIL APPL. NO. 250 OF 2022, decided on 14th February, 2022. The present bail application is a merged bail application since the person appealing for bail is same in both the cases. The first BA arises from the case reported by the crime branch Crime No.102/CB/KNR & KSD/2017 while second BA arises out of Crime No.104/CB/KNR & KSD/2017. The petitioner was charged under the offences of Section 420 & Section 406 of the Indian Penal Code. The petitioner in both the cases has been charged under the complaint that he obtained money from the complainants by promising that he will secure the admission of their wards in Ambala Medical College/Jubilee Medical College. It was submitted by the counsels on behalf of the petitioner that he was innocent and had not done any of the alleged task. The allegations are baseless since there is no proof f payment. Thus, the petitioner shall be granted bail. This appeal was vehemently opposed by the public prosecutor who stated that there is sufficient proof that the payments had been made and through bank. Thus, bail shall not be granted considering the seriousness of the offence. The Court heard the submissions and observed the facts and circumstances of the case. Considering the fact that the petitioner had been in custody for over a year, the court was of the view that the petitioner shall be granted, however, on certain conditions. The court granted the bail application, stating the conditions and ordered that an action maybe taken by the investigating officer, if the conditions are violated. Click here to view the judgement.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE GOPINATH P MONDAY THE 14TH DAY OF FEBRUARY 2022 25TH MAGHA 1943 BAIL APPL. NO. 232 OF 2022 IN 102 CB KNR & KSD 2017 WHICH AROSE FROM CRIME NO.1357 2016 OF MATTANNUR POLICE STATION KANNUR SHAFSEER P.P. AGED 35 YEARS PUTHIYAPURAYIL HOUSE CHAVASSERY AMSOM VALORA ULIYILKANNUR DISTRICT PIN 670702 PHIJO PRADEESH PHILIP RESPONDENTS COMPLAINANT & STATE STATE OF KERALA PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM KOCHI PIN 682031 STATION HOUSE OFFICER MATTANNUR POLICE STATION KANNUR DISTRICT PIN 670702 BY SRI.M.C.ASHY PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2022 ALONG WITH Bail Appl..250 2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA Nos.232 & 2522 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE GOPINATH P MONDAY THE 14TH DAY OF FEBRUARY 2022 25TH MAGHA 1943 BAIL APPL. NO. 250 OF 2022 IN 104 CB KNR & KSD 2017 WHICH AROSE FROM CRIME NO.1426 2016 OF MATTANNUR POLICE STATION KANNUR SHAFSEER P.P. AGED 35 YEARS PUTHIYAPURAYIL HOUSE CHAVASSERY AMSOM VALORA ULIYILKANNUR DISTRICT PIN 670702 PHIJO PRADEESH PHILIP RESPONDENTS COMPLAINANT & STATE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PIN 682031 STATION HOUSE OFFICER MATTANNUR POLICE STATION KANNUR DISTRICT PIN 670702 BY SMT.SEETHA SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2022 ALONG WITH Bail Appl..232 2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA Nos.232 & 2522 These are applications for regular bail 2. The petitioner in both these bail applications is the same person BA No. 2322 arises out of a case registered by the Crime Branch as Crime No.102 CB KNR & KSD 2017 while BA No. 2522 arises out of Crime No.104 CB KNR & KSD 2017. Crime No.102 CB KNR & KSD 2017 was registered alleging commission of offences punishable under Sections 406 and 420 of the Indian Penal Code and Crime No.104 CB KNR & KSD 2017 was registered alleging commission of offence under Section 420 of the Indian Penal Code 3. The allegation against the petitioner in both cases is that he obtained money from the de facto complainants with the promise of securing admission for their wards for MBBS in the Amala Medical College or Jubilee Medical College Thrissur 4. The learned counsel for the petitioner vehemently submits that the petitioner is absolutely innocent in the matter. It is submitted that while in one case the allegation is that the petitioner has procured Rs.5 00 000 from the de facto complainant the allegation in the other case is that he had procured Rs.30 00 000 from the de BA Nos.232 & 2522 facto complainant. It is further submitted that the allegations are totally baseless and there is no evidence to show payment of any money to the petitioner. It is submitted that the petitioner has been in custody from 09.12.2021 and the continued detention of the petitioner is not necessary for the purpose of any investigation. 5. The learned Public Prosecutor opposes grant of bail. It is pointed out that there is sufficient evidence to show that the amounts were given to the petitioner and the payments were made through bank It is submitted that the petitioner is not entitled to be released on bail considering the allegations against him 6. Having regard to the facts and circumstances of the case and taking into account of the nature of allegations against the petitioner and also considering the fact that he has been in custody from 09.12.2021 I am of the view that the petitioner can be granted bail subject to stringent conditions. I also note that final report in both cases has already been filed against the petitioner In the result these bail applications are allowed and it is directed that the petitioner shall be released on bail subject to the following a) The petitioner shall execute separate bonds for a sum of Rs.50 000 in each crime BA Nos.232 & 2522 with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court b)Petitioner shall appear before the investigating officer in Crime Nos.102 CB KNR & KSD 2017 and 104 CB KNR KSD 2017 whenever called upon to do so c) The petitioner shall not attempt to influence or intimidate the de facto complainants or any witness in Crime Nos.102 CB KNR & KSD 2017 and 104 CB KNR d)The petitioner shall not involve in any other crime while on KSD 2017 If any of the aforesaid conditions is violated the investigating officer in Crime Nos.102 CB KNR & KSD 2017 and 104 CB KNR KSD 2017 may file an application before the jurisdictional court for cancellation of bail

One of the two birth certificates was allowed to be cancelled in absence of any specific rule providing for the same: High Court of Delhi

One individual cannot be permitted to hold two birth certificates containing two different birth dates as the identity of a person is established not only by his name and parentage but also by his date of birth. Continuance of two birth certificates containing two different dates of birth would imply that one individual can pose as two different individuals, the error which cannot be permitted to perpetuate. Accordingly, it is also in public interest that one of the birth certificates be cancelled. Further, interest of justice also demands that one of the two certificates be cancelled and the same was held by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of VIPIN SEHRAWAT vs. DEPUTY COMMISSIONER SDMC [W.P.(C) 1352/2022] on 22.02.2022. The facts of the case are the petitioner was born in his house in the village and at the time when the birth certificate dated 24.09.2013 was got issued erroneously the date of birth of the petitioner was mentioned as 01.11.2002 instead of 01.11.2001. Therefore, petitioner today possesses two birth certificates one dated 24.09.2013 where the date of birth has been erroneously shown as 01.11.2002 and the other birth certificate dated 30.10.2015 where the correct date of birth of 01.11.2001 has been mentioned. Petitioner through the present petition seeks a direction to the respondent to cancel the birth certificate of the petitioner issued on 24.09.2013. The petitioner’s counsel submitted that when petitioner applied for change of the date in his passport the issuing authority cancelled the passport. It was submitted that in the entire educational record of the petitioner the correct date of birth i.e. 01.11.2001 has been mentioned, however, in the passport that was obtained by the petitioner the date of birth was mentioned as 01.11.2002. The respondent’s counsel submitted that there is no rule providing for cancellation of a birth certificate. He further submitted that both the certificates one dated 24.09.2013 and other dated 30.10.2015 were issued based on the reports of the District Magistrate certifying the date of birth which was in turn based on the information provided by the father of the petitioner. In the view of aforesaid facts and circumstances, the court disposed the petition with a direction to the respondent to revoke/cancel the birth certificate dated 24.09.2013 to correct the error of petitioner holding two birth certificates with two different dates of birth. The Court observed, “One individual cannot be permitted to hold two birth certificates containing two different birth dates as the identity of a person is established not only by his name and parentage but also by his date of birth. Continuance of two birth certificates containing two different dates of birth would imply that one individual can pose as two different individuals; which error cannot be permitted to perpetuate. Accordingly, it is also in public interest that one of the birth certificates be cancelled. Further, interest of justice also demands that one of the two certificates be cancelled.” Click here to read the Judgment 

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 22.02.2022 W.P.(C) 1352 2022 VIPIN SEHRAWAT Petitioner DEPUTY COMMISSIONER SDMC Advocates who appeared in this case: For the Petitioner: Mr. Jai Singh Mann Advocate. For the Respondent: Mr. Arun Panwar Advocate. Respondent CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Petitioner seeks a direction to the respondent to cancel the birth certificate of the petitioner issued on 24.09.2013. It is contended by the petitioner that the petitioner was born in his house in the village. He submits that at the time when the birth certificate dated 24.09.2013 was got issued erroneously the date of birth of the petitioner was mentioned as 01.11.2002 instead of 01.11.2001. He submits that petitioner today possesses two birth certificates one dated 24.09.2013 where the date of birth has been erroneously W.P(C) 1352 2022 1 shown as 01.11.2002 and the other birth certificate dated 30.10.2015 where the correct date of birth of 01.11.2001 has been mentioned. It is pointed out by learned counsel for the petitioner that in the entire educational record of the petitioner the correct date of birth i.e. 01.11.2001 has been mentioned however in the passport that was obtained by the petitioner the date of birth had been mentioned as 01.11.2002. Learned counsel for the petitioner submits that when petitioner applied for change of the date in his passport the issuing authority has cancelled the passport. Learned counsel appearing for the respondent Corporation submits that there is no rule providing for cancellation of a birth certificate. He further submits that both the certificates one dated 24.09.2013 and other dated 30.10.2015 were issued based on the reports of the District Magistrate certifying the date of birth which was in turn based on the information provided by the father of the Learned counsel for petitioner submits that father of the petitioner is an illiterate person and was not aware of the error committed by him. dates of birth. Petitioner is holding two birth certificates with two different 10. One individual cannot be permitted to hold two birth certificates W.P(C) 1352 2022 2 birth. containing two different birth dates as the identity of a person is established not only by his name and parentage but also by his date of 11. Continuance of two birth certificates containing two different dates of birth would imply that one individual can pose as two different individuals which error cannot be permitted to perpetuate. 12. Accordingly it is also in public interest that one of the birth certificates be cancelled. Further interest of justice also demands that one of the two certificates be cancelled. 13. The categorical stand of the petitioner is that the birth certificate dated 24.09.2013 contains an incorrect date of birth i.e. 01.11.2002 and the later birth certificate dated 30.10.2015 contains the correct date of birth i.e. 01.11.2001 which is also borne out from the educational record of the petitioner i.e. certificate issued by the CBSE of the secondary school examination and the certificate issued by the CBSE of the All India Senior School certificate examination as also the University documents. In view of the above this petition is disposed of with a direction to the respondent to revoke cancel the birth certificate dated 24.09.2013 issued in the name of ‘Vipin Sehrawat’ with the date of birth ‘01.11.2002’ name of the mother ‘Seema’ and name of the father ‘Satish Kumar’ bearing registration number ‘MCDOLIR 0113 W.P(C) 1352 2022 3 15. Petition is allowed in the above terms. 16. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court FEBRUARY 22 2022 SANJEEV SACHDEVA J. W.P(C) 1352 2022 4

Detention order held unsustainable due to arbitrary use of Law Of Preventive Detention by the Detention Authority: The High Court of Jammu & Kashmir and Ladakh

Vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Musadiq Gaffar Lone v. Union Territory Of J&K & Anr. [WP(Crl.) No.184/2020] which was decided upon by the single judge bench comprising Justice Sanjay Dhar on 16th November 2021. The facts of the case are as follows. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the constitutional and statutory procedural safeguards have not been complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him. A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 11.11.2020. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the signature of petitioner and according to it, copy of detention warrant (01 leaf), grounds of detention (02 leaves), copy of dossier (Nil), other related documents (Nil), in total 04 leaves, have been supplied to him. It is clear from the execution report, which forms part of the detention record, that copies of detention order and the dossier have not at all been supplied to the detenue. contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. The court perused the facts and arguments presented. It was of the opinion that “the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.  Viewed thus, the petition is allowed and the impugned order of detention bearing No. 37/DMP/PSA/20 dated 09.11.2020, issued by respondent No.2-District Magistrate, Pulwama, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The detention record be returned to the learned counsel for the respondents.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 28.10.2021 Pronounced on: 16.11.20210 WP(Crl.) No.184 2020 MUSADIQ GAFFAR LONE ...PETITIONER Through: Mr. Wajid Haseeb Advocate. UNION TERRITORY OF J&K & ANR. Through: Mr. Asif Maqbool Dy. AG vice Mr. Mir Suhail AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE petition No.37 DMP PSA 20 dated 09.11.2020 issued by District Magistrate Pulwamais sought. In terms of the aforesaid order Musadiq Gaffar Lone son of Abdul Gaffar Lone resident of Niloora Tehsil Litter District Pulwamahas been placed under preventive detention and lodged in Kotbhalwal Jail Jammu. Petitioner has contended that the Detaining Authority has impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the 2 WP(Crl.) No.184 2020 detenue in the grounds of detention are vague. Petitioner has gone on to contend that he has not been informed as to before which authority he had to make a representation. The writ petition is opposed by the respondents who have filed reply affidavit on behalf of the detaining authority. The factual submissions made by the petitioner have not been refuted in the reply affidavit. The respondents have relied upon the judgment of the Supreme Court in the case of Hardhan Saha v. State of W.B3 SCC 198 and submitted that the detention order is based on the subjective satisfaction of the detaining authority and the same cannot be gone into by this Court in exercise of its extraordinary writ jurisdiction. It is contended that the detenue has been detained only after following the due procedure that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. detention record. I have heard learned counsel for parties and perused the Learned counsel for the petitioner while seeking quashment of the impugned order projected various grounds but his main thrust during the course of arguments was on the ground that the constitutional and statutory procedural safeguards have not been complied with in the case of the petitioner inasmuch as whole of the 3 WP(Crl.) No.184 2020 material forming basis of the grounds of detention has not been furnished to him. A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 11.11.2020. Report of the Executing Officer in this regard forms part of the detention record a perusal thereof reveals that it bears the signature of petitioner and according to it copy of detention warrantgrounds of detentioncopy of dossierother related documentsin total 04 leaves have been supplied to It is clear from the execution report which forms part of the detention record that copies of detention order and the dossier have not at all been supplied to the detenue. Apart from this if we have a look at the grounds of detention it bears reference to two FIRs Viz. FIR No.35 2020 and 278 2016. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded during investigation of these FIRs as well as the other material on the basis of which petitioner’s involvement in these FIRs is shown. Thus contention of the petitioner that whole of the material relied upon by the detaining authority while framing the grounds of detention has not been supplied to him appears to be well founded. Obviously the petitioner has been hampered by non supply of these vital documents in making a representation before the Advisory Board as a result whereof his case has been considered by the Advisory Board in the absence of his representation as is clear from the detention record. Thus vital 4 WP(Crl.) No.184 2020 safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 8) Viewed thus the petition is allowed and the impugned order of detention bearing No. 37 DMP PSA 20 dated 09.11.2020 issued by respondent No.2 District Magistrate Pulwama is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other The detention record be returned to the learned counsel for the “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No MOHAMMAD ALTAF BHAT2021.11.16 14:33I attest to the accuracy andintegrity of this document

High Court can quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is remote possibility of securing conviction of the accused: High Court of J&K and Ladakh

Offenses arising out of matrimony relating to dowry or disputes which have predominantly civil flavor where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is the remote possibility of securing the conviction of the accused as held by the High Court of J&K and Ladakh in the case of Farooq Ahmad Khanday & Ors Vs State of J&K and anr [CRMC No.262/2017] and Gowhar Ahmad Shah & Ors Vs State of J&K and anr [CRMC No.292/2017] In CRMC No.269/2017, petitioners have challenged FIR No.187/2017 for offenses under Section 147, 354, 436-A RPC registered with Police Station, Pampore. In CRMC No.292/2017, petitioners have challenged FIR No.42/2017 for offenses under Section 447, 452, 379, and 427 RPC registered with Police Station, Pampore, which has been lodged at the instance of Farooq Ahmad Khanday, who happens to be the petitioner No.1 in CRMC No.269/2017. Briefly stated, the allegations in FIR No.187/2017 against the accused are that while the complainant was collecting branches of apple trees in her orchard, the accused persons washed their vehicles in the premises of the petrol pump near the orchard of the complainant where after they drained out the polluted wastewater towards the orchard of the petitioner resulting in damage to the orchard. Aggrieved by this, the complainant protested but she was assaulted by the accused and her clothes were torn out with the intention to outrage her modesty. The allegations leveled by the complainant in FIR No.42/2017 against the accused are that when the complainant was present in his petrol pump, the accused persons trespassed into his petrol pump gave a beating to him, and damaged the glass panes and counter of the petrol pump. During the pendency of these two petitions, the parties have entered into a compromise and have placed on record the original compromise deed. As per this compromise deed, the parties have settled their disputes amicably as they want to live peacefully without involving themselves in further litigation. It is further stated in the compromise deed that the executants do not want to pursue the impugned FIRs. The Hon’ble High Court after hearing both the parties and relying on the principles laid down in the case of Gian Singh. v. State of Punjab & another and Narinder Singh & Ors. Vs. State of Punjab & Anr concluded that “It is clear that the offenses arising out of matrimony relating to dowry or disputes which have predominantly civil flavor where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is the remote possibility of securing the conviction of the accused. In fact, in such cases, the Supreme Court has clearly observed that it would amount to extreme injustice if despite settlement having been arrived at by the parties, the criminal proceedings are allowed to continue.”

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 27.09.2021 Pronounced on:29.09.2021 CRMC No.269 2017 CRMC No.292 2017 Farooq Ahmad Khanday & Ors. Gowhar Ahmad Shah & Ors. ... Petitioner(s) Through: Mr. M. Ashraf Wani AdvocateThrough: Mr. Mir Suhail AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE In CRMC No.269 2017 petitioners have challenged FIR No.187 2017 for offences under Section 147 354 436 A RPC registered with Police Station Pampore. The impugned FIR has been lodged against the petitioners by Haseena Akhter who happens to be the wife of petitioner No.4 in CRMC No.292 2017. In CRMC No.292 2017 petitioners have challenged FIR No.42 2017 for offences under Section 447 452 379 and 427 RPC registered with Police Station Pampore which has been lodged at the instance of Farooq 2 CRMC No.262 2017 CRMC No.292 2017 Ahmad Khanday who happens to be the petitioner No.1 in CRMC Briefly stated the allegations in FIR No.187 2017 against the accused are that on 26.03.2017 while the complainant was collecting branches of apple trees in her orchard the accused persons washed their vehicles in the premises of the petrol pump near the orchard of the complainant whereafter they drained out the polluted waste water towards the orchard of the petitioner resulting in damage to the orchard. Aggrieved by this the complainant protested but she was assaulted by the accused and her clothes were torn out with the intention to outrage her modesty. The allegations levelled by the complainant in FIR No.42 2017 against the accused are that on 26.03.2017 when the complainant was present in his petrol pump the accused persons trespassed into his petrol pump gave a beating to him and damaged the glass panes and counter of the petrol pump. During the pendency of these two petitions the parties have entered into a compromise and have placed on record original compromise deed. As per this compromise deed which has been executed on 30th day of October 2018 the parties have settled their disputes amicably as they want to live peacefully without involving themselves in further litigation. It is further stated in the compromise deed that the executants do not want to pursue the impugned FIRs. The 3 CRMC No.262 2017 CRMC No.292 2017 compromise deed has been executed by Farooq Ahmad Khanday the complainant in FIR No.42 2017 and Haseena Akhter the complainant in FIR No.187 2017. They have also made statements before the Registrar Judicial on 24th March 2021 wherein they have admitted the contents of the deed of compromise as well as its execution. I have heard learned counsel for the parties and perused the record of the case. So far as the facts alleged in both the petitions particularly those pertaining to the compromise arrived at between the parties in terms of compromise deed dated 30.10.2018 are concerned the same are not disputed. However according to the petitioners some of the offences are non compoundable. In the backdrop of this position the question arises as to whether this Court has power to quash the proceedings particularly when some of the offences alleged to have been committed by the petitioners of both the petitions are non compoundable in nature. The Supreme Court in the case of Gian Singh. v. State of Punjab & another reported in10 SCC 303 while considering this aspect has observed as under: “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz i) to secure the ends of justice orto prevent abuse 4 CRMC No.262 2017 CRMC No.292 2017 of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre dominatingly civil flavour stand on different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases High Court may quash criminal proceedings if in its view because of the compromise between the offender and victim the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative the High Court shall be well within its jurisdiction to quash the criminal 5 CRMC No.262 2017 CRMC No.292 2017 Similarly the Supreme Court in the case titled Narinder Singh & Ors. Vs. State of Punjab & anr reported in6 SCC 466 has laid down guidelines for quashing of criminal proceedings. The guidelines are reproduced as under: “31. In view of the aforesaid discussion we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: i) ends of justice or ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Similarly for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. IV) On the other those criminal cases having overwhelmingly and pre dominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be 6 CRMC No.262 2017 CRMC No.292 2017 quashed when the parties have resolved their entire disputes among themselves. V) While exercising its powers the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to proving the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the vital delegate parts of the body nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. VII) While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement the criminal to quash proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show 7 CRMC No.262 2017 CRMC No.292 2017 benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime. From a perusal of the aforesaid observations of the Supreme Court it is clear that the offences arising out of matrimony relating to dowry or disputes which have predominantly civil flavour where the wrong is basically private or personal in nature and the parties have resolved their entire dispute the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties there is remote possibility of securing conviction of the accused. In fact in such cases the Supreme Court has clearly observed that it would amount to extreme injustice if despite settlement having been arrived at by the parties the criminal proceedings are allowed to continue. Adverting to the facts of the instant case it is clear that the parties to the dispute i.e. complainants of both the impugned FIRs have entered into a compromise whereby they have decided not to pursue the 8 CRMC No.262 2017 CRMC No.292 2017 prosecution against accused in the FIRs. As is clear from the allegations made in the two FIRs it appears that the properties belonging to two rival groups are situated adjacent to each other. The prosecution launched by the parties against each other appears to have emanated from the disputes which are essentially civil in nature. Therefore once the rival groups have arrived at a settlement as regards the basis of the dispute allowing the prosecutions to continue merely because some of the offences alleged against the accused are non compoundable in nature would amount to great injustice to both the parties and in fact it will amount to frittering away the fruits of compromise that has been arrived at between the parties. The continuance of criminal proceedings against the petitioners of the two petitions in these circumstances will be nothing but an abuse of process of law. 10) Taking conspectus of the aforesaid discussion the petitions are allowed. Accordingly FIR No.187 2017 for offences under Section 147 354 436 A RPC and FIR No.42 2017 for offences under Section 447 452 379 and 427 RPC both registered with Police Station Pampore as also the proceedings emanating therefrom are quashed. Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Prisoner’s right to be compensated by the Court of Justice for delay in release from prison: High Court of Delhi

The High Court has powers to award monetary compensation for infraction of constitutional or other rights. The question as to the prisoner’s right to be compensated by the Court of Justice for delay in release from prison was examined by High Court of Delhi, consisting of Justice Anup Jairam Bhambhani in the matter of Sanjay Singh vs. The State (GOVT. OF NCT) of Delhi & Anr. [W.P. (CRL.) 974/2020] on 30.9.2021. The facts of the case are that the petitioner despite having been admitted to bail vidé order dated 18.05.2020 made by the learned Metropolitan Magistrate, Dwarka Courts, New Delhi had not been released from Tihar jail. When the matter came-up for hearing for the first time on 26.06.2020, the Court was informed that the petitioner had been released from jail the previous night i.e., on 25.06.2020. Inspite thereof however, in subsequent proceedings, upon an issue being raised on behalf of the petitioner as to the delay in releasing the petitioner from prison, certain explanations were offered; and, and negligence on the part of the prison authorities was seen. Court recorded its displeasure and issued certain directions to ensure due sensitisation of prison officials about the rights of the prisoners, inter-alia mandating that prisoners must be released expeditiously once granted bail or other relief by courts. The learned Counsel for the petitioner argued that while other compliances were made, the petitioner deserves to be compensated for the 10 days’ delay in releasing him from prison i.e., for the period between 15.06.2020, when he furnished requisite securities, and 25.06.2020 i.e., the date on which he was finally released. She relied on the verdict of the Hon’ble Supreme Court in the case of MLA vs. State of J & K & Ors., to submit that the court is entitled to award monetary compensation even by way of exemplary costs or otherwise. the learned Counsel for respondent (appearing for the prison authorities) contended that through its various orders, this court had pursued the matter in order to streamline processes for issuance of production warrants and to ensure that there was no laxity or delay in releasing prisoners who had been admitted to bail, in so far as the petitioner’s own case is concerned, that stood closed and no further relief ought to be granted to the petitioner.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 30th September 2021 W.P.974 2020 SANJAY SINGH Petitioner Through: Ms. Alpana Pandey Advocate. THE STATEOF DELHI & ANR Respondents Through: Mr. Sanjay Lao Standing Counsel Criminal) for the State. Mr. Kanwal Jeet Arora Member Secretary DSLSA along with Mr. S. K. Sethi and Ms. Dolly Sharma Advocates. HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI J U D G M E N T ANUP JAIRAM BHAMBHANI J. By way of the present petition as originally filed the petitioner had made the following prayers: “a.) Allow the present petition in favour of the petitioner and issue the writ in the nature of Habeas Corpus against the Respondents to release the Petitioner who is illegally detained by the Respondent no.2 illegal detention and Pass any other order orders as this Hon’ble Court may kindly be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.” Grant the reasonable compensation to the petitioner for his W.P.(CRL) 974 2020 2. The principal grievance raised by the petitioner by way of the present writ petition was that despite having been admitted to bail vidé order dated 18.05.2020 made by the learned Metropolitan Magistrate Dwarka Courts New Delhi the petitioner had not been released from Tihar jail. It was the petitioner’s contention that in compliance with the aforementioned bail order the petitioner had submitted requisite bail bonds on 15.06.2020 and yet he was not released from prison. 3. When the matter came up for hearing for the first time on 26.06.2020 learned Standing Counselappearing for the Government of NCT of Delhi representing the prison authorities informed the court that the petitioner had been released from jail the previous night i.e. on 25.06.2020. Inspite thereof however in subsequent proceedings upon an issue being raised on behalf of the petitioner as to the delay in releasing the petitioner from prison certain explanations were offered and viewing the laxity and negligence on the part of the prison authorities this court recorded its displeasure and issued certain directions to ensure due sensitisation of prison officials about the rights of the prisoners inter alia mandating that prisoners must be released expeditiously once granted bail or other relief by courts. 4. Lastly vidé order dated 19.07.2021 the learned Standing Counsel Criminal) appearing on behalf of GNCTD sought time to place on record the latest circular dated 10.03.2021 issued by the office of the learned Principal District & Sessions Judge Delhi to ensure that judicial officers of subordinate courts comply with an earlier Circular No.18383 508 Comp Br 2020 THC dated 26.09.2020 W.P.(CRL) 974 2020 pertaining to template orders requiring production of prisoners in court in line with section 267 Cr.P.C. and other related matters. Under cover of status report dated 26.04.2021 the said circular dated 10.03.2021 was also placed on record. 5. However in the course of the last hearing Ms. Alpana Pandey learned counsel appearing for the petitioner argued that while other compliances may have been made the petitioner deserves to be compensated for the 10 days’ delay in releasing him from prison i.e. for the period between 15.06.2020 when he furnished requisite securities and 25.06.2020 i.e. the date on which he was finally released. 6. Ms. Pandey placed reliance on the verdict of the Hon’ble Supreme Court in Bhim Singh MLA vs. State of J & K & Ors1 to submit that the court is entitled to award monetary compensation even by way of exemplary costs or otherwise as held in the said case. 7. Opposing the said prayer Mr. Sanjay Lao learned Standing Counsel Criminal) appearing for the prison authorities submitted that though by its various orders this court had pursued the matter in order to streamline processes for issuance of production warrants and to ensure that there was no laxity or delay in releasing prisoners who had been admitted to bail in so far as the petitioner’s own case is concerned that stood closed inter alia vidé order dated 26.06.2020 and no further relief ought to be granted to the petitioner. 4 SCC 677 W.P.(CRL) 974 2020 8. In order to address the above contention this court notices the following portions of various orders made in the course of the present Order dated 26.06.2020 6. While the relief in the present petition does not survive as the petitioner has been released though belatedly it is deemed appropriate to take the matter to its logical conclusion by directing the respondent to file an affidavit stating inter alia the date on which a copy of the order dated 18th May 2020 passed by the learned MM South West Dwarka New Delhi admitting the petitioner to bail was served on the jail authorities and explaining the reasons for illegally detaining him till late last night. The said affidavit shall be filed by the Superintendent Jail Jail No.1 Tihar Jail within 3 days with a copy furnished to learned counsel for the Order dated 06.07.2020 1. On the last date of hearing i.e. on 26.6.2020 we had recorded that while the relief in the present petition filed by the petitioner stating inter alia that he had been illegally detained in jail did not survive as he had been released from jail a night before i.e. on 25.6.2020 it was deemed appropriate to direct the respondent Jail Authorities to file an affidavit explaining the reason for illegally detaining the petitioner after the order dated 18.5.2020 was passed by the learned MM Dwarka Courts New Delhi admitting him to Order dated 06.08.2020 3. Having perused the Status Report filed by the D.G.we propose to let the matter rest here. However taking note of the explanation sought to be offered by the Superintendent Central Jail I for unlawfully detaining the petitioner in prison beyond ” W.P.(CRL) 974 2020 20.06.2020 we are of the opinion that officers posted in the jails particularly those of the rank of the Superintendents Deputy Superintendents and Assistant Superintendents must be apprised of their duties and obligations in law so that such an incident is not repeated in the future. emphasis supplied) 9. On a combined reading of the aforesaid orders we are inclined to agree with Mr. Lao’s submission that insofar as the petitioner’s own case is concerned considering the prayers made in the petition and the fact that the petitioner stood released from prison even before the very first date of hearing in this matter nothing further survives insofar as the prayers made in the petition are concerned and that it was so observed by the Bench in the orders extracted above. Upon a conspectus of the status reports filed and the apologies and explanations tendered the court had laid the matter to rest save and except only the course corrective measures that were taken subsequently. 10. Insofar as the petitioner’s reliance on the decision in Bhim Singh MLA supra) is concerned we may only note that in the concluding portion of that judgment the Supreme Court says: “2. ........... That we have the right to award monetary compensation by way of exemplary costs or other wise is now established by the decision of this Court in Rudul Sah v. State of Bihar and Sebastian M. Hongray v. Union of India. When a person comes to us with the imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded the mischief or malice and the invasion may not be washed away or wished away by his being set free. In that he has been arrested and W.P.(CRL) 974 2020 appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation.” emphasis supplied) However in the present case the petitioner has not placed any material on record to substantiate a case of ‘mischief’ or ‘malicious intent’ as would warrant the grant of monetary compensation in line with the verdict of the Supreme Court in the above case. While in an appropriate case this court certainly has powers to award monetary compensation for infraction of constitutional or other rights in our opinion in the present case there is nothing to make out a case of mischief or malice and consequently there is no basis for award of any compensation. The decision of the Supreme Court in Bhim Singh MLAis accordingly of no avail to the petitioner in the present 11. In view of the above we find no merit in the petitioner’s plea for awarding compensation or damages in the present case which plea we case. accordingly reject. 12. No further directions are called for in the matter. 13. The writ petition is accordingly disposed of. 14. Other pending applications if any also stand disposed of. SEPTEMBER 30 2021 Ne SIDDHARTH MRIDUL J ANUP JAIRAM BHAMBHANI J W.P.(CRL) 974 2020

30 years to get justice in a false case of attempt to rape: Orissa High Court

The victim tried to shift the entire blame on the Appellant as the perpetrator of the crime, to save her reputation among her family members and the society. The Orissa High Court acquitted the Appellant in a 30-year old case of attempt to rape. This ratio was laid down by J. S.K. Sahoo in the case of Sarughana Nag Vs. State of Odisha, [CRA No. 128 of 1990]. The brief facts of this case are that the victim’s brother allegedly caught the accused forcing himself on his sister while she was calling for help. As per the statement of the victim and few other witnesses the accused broke into the victim’s house at night, entered her room, disrobed her and made an attempt to rape her while she cried for help. The victim’s brother found the accused and her sister in a compromised position and so he assaulted the victim with firewood. Later, an FIR was filed against the accused and he was arrested. The trial court in this case convicted the accused under section 376/51, 354 & 457 of IPC and sentenced him 4 years of rigorous imprisonment. The Accused aggrieved by the Trial Court’s decision filed an appeal in the High Court. The Appellant contended that a false accusation was brought by the victim and her family as the victim had consented to sexual intercourse. Further, there was no allegation of rape in the initial report and no medical evidence to prove the allegation of rape.

IN THE HIGH COURT OF ORISSA CUTTACK CRA NO. 128 Of 1990 From the judgment and order dated 17.03.1990 passed by the Additional Sessions Judge Titilagarh in Sessions Case No.62 22 of 1989. Satrughana Nag … Appellant Versus State of Odisha … Respondent For Appellant: Mr. Rajjeet Roy Amicus Curiae) For Respondent: Mr. D.K.Pani Addl. Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO Date of Hearing: 03.12.2020 Date of Judgment: 11.12.2020 S. K. SAHOO J. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge Titilagarh in Sessions Case No.62 22 of 1989 for offences punishable under sections 376 511 354 and 457 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 17.03.1990 found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.100 in default to undergo R.I. for one month for the offence under section 376 511 of Indian Penal Code R.I. for one year and to pay a fine of Rs.100 in default to undergo R.I. for one month for the offence under section 457 of Indian Penal Code and both the sentences were directed to run concurrently. No separate sentence was awarded for the offence under section 354 of the This appeal was preferred on 04.05.1990 and the appellant was directed to be released on bail as per order dated Indian Penal Code. 25.05.1990. The prosecution case as per the first information reportlodged by the victimbefore the officer in charge of Titilagarh police station is that on 03.10.1989 at about 9.30 p.m. while she was sleeping with her younger brother Susil Nag on a cot in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag P.W.2) were sleeping in the adjacent room the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim P.Ws.2 and 3 came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bed room but the victim as well as P.W.2 assaulted him by fire wood. Due to tussle of the appellant with the victim the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. On the basis of the first information report lodged Titilagarh P.S. Case No.100 of 1989 was registered on 03.10.1989 under sections 457 and 354 of the Indian Penal Code. The officer in charge of Titilagarh Police Station directed P.W.7 Smt. Gitarani Panda who was the W.S.I. of police to take up investigation of the case. During course of investigation P.W.7 examined the victim and other witnesses visited the spot and also seized the pieces of fire woodone gamuchha M.O.III) and broken pieces of glass bangles vide seizure list Ext.5. The appellant was found hospitalized as an indoor patient at Titilagarh Government Hospital and after his discharge from the hospital he was arrested on 17.10.1989 and forwarded to the Court. On completion of investigation charge sheet was submitted against the appellant on 25.10.1989 for the offences under sections 457 and 354 of the Indian Penal Code. The learned Magistrate however took cognizance of the offences under sections 376 511 354 and 457 of the Indian Penal Code and committed the case to the Court of Session for trial. The learned trial Court framed charges as aforesaid on 15.01.1990 against the appellant and since the appellant refuted the charges pleaded not guilty and claimed to be tried the sessions trial procedure was resorted to prosecute him and establish his guilt. complete denial. The defence plea of the appellant was one of During course of trial in order to prove its case the prosecution examined as many as eight witnesses. P.W.1 is the victim and the informant of the case. She stated about the occurrence. P.W.2 Jayanti Nag is the sister in law of the victim and she stated to have come to the room of the victim on hearing hullah and found the appellant in a naked condition lying over the victim who was also naked and committing sexual intercourse with her. She further stated to have assaulted the appellant with fire wood when he tried to conceal himself underneath a raised platform. P.W.3 Jubaraj Nag is the brother of the victim and he stated to have come to the room of the victim on hearing hullah and found the appellant in a naked condition lying over the victim who was also naked. He further stated that the victim and P.W.2 assaulted the appellant by fire wood. P.W.4 Dr. Sarat Kumar Das was the Medical Officer attached to Titilagarh Government Hospital who examined the appellant and noticed some simple injuries on his person and proved the injury report vide Ext.1. P.W.5 Sayed Mujibur Rahaman was the S.I. of Police in charge of station diary of Titilagarh Police Station who stated to have made a station diary on the oral information of the brother of the appellant relating to the injuries sustained by the appellant inside the house of the victim. He sent requisition to the Medical Officer Titilagarh Government Hospital for treatment of the appellant. P.W.6 Golap Nag is the neighbour of the victim and he stated that on hearing the hullah he rushed to the house of the victim and found that the appellant was lying naked over the victim who was also in a naked condition. He further stated that the brothers of the appellant forcibly took him to their house. P.W.7 Smt. Gitarani Panda was the Women Sub Inspector of Police who was the investigating officer of the case. P.W.8 Chaitanya Behera was the officer in charge of Titilagarh police station who registered the case on the oral report of the victim and directed P.W.7 to investigate the case. The prosecution exhibited five documents. Ext.1 is the injury certificate Ext.2 is the S.D. entry No.98 dated 04.10.1989 Ext. 3 is the S.D. entry No.99 dated 04.10.1989 Ext.4 is the F.I.R. and Ext.5 is the seizure list. The prosecution also proved two pieces of fire wood as M.O.I and M.O.II one gamuchha as M.O.III and broken pieces of glass bangles as M.O.IV. The learned trial Court after discussing the evidence of the victim her sister in law and her brother P.W.3) came to hold that the act of the appellant was definitely a step towards the commission of the offence of rape though the penultimate act of thrusting his male organ into the private part of P.W.1 was not completed and so the act of the appellant did not stop at the stage of preparation but it reached the stage of attempt and his intention to commit the offence failed by the reason of P.Ws.2 3 and 6 coming to the spot hearing the hullah of P.W.1. Accordingly the Court found the appellant guilty of the offences charged. the matter was called for hearing on 05.11.2020 learned counsel for the appellant was not present and since it is an appeal of the year 1990 Mr. Rajjeet Roy learned counsel was appointed as amicus curiae to assist the Court for the appellant. A copy of the paper book was also directed to be served on him and he was given time to prepare the case. learned amicus curiae appearing appellant placed the impugned trial Court judgment F.I.R. as well as the evidence of the witnesses. He argued that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members she reacted and brought false accusation against the appellant just to save her own skin. The victim developed her case at the stage of trial and brought an allegation of rape against the appellant for the first time which shows that she is not a truthful witness. It was further argued that the victim has not been medically examined and therefore it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. D.K. Pani learned Addl. Standing Counsel on the other hand contended that the evidence of the victim is clear cogent and trustworthy that in itself is sufficient to convict the appellant. He urged that the victim has categorically implicated the appellant to have committed rape on her and injuries sustained by the appellant corroborate the prosecution case of assault on him by fire wood by the victim and P.W.2 inside the room of the victim and therefore the appeal should be dismissed. It is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating The victim who is the star witness of the case has stated that on the date of occurrence at about 9.30 p.m. while she along with her younger brother Susil was sleeping on a cot placed on the middle room of the house she suddenly woke up as she found somebody was lying over her and she found that it was the appellant who had pressed her. Then the appellant removed her saree and made her naked threw her on the ground of that room pressed her mouth with his hand squeezed her breast with his other hand removed his own lungi and gamucha and then committed rape on her. She further stated that when she shouted on hearing her hullah P.Ws.2 and 3 rushed to her room and on seeing them the appellant concealed himself underneath the raised platform of that room. She further stated that she along with P.W.2 assaulted the appellant by means of fire wood. Then others also came to the scene of occurrence and the appellant was detained by them but suddenly the brothers of the appellant arrived there and took away the appellant with them. She identified the material objects. She further stated to have gone to the police station along with P.W.3 and reported the matter orally. there was another room adjoining the room where she was sleeping and inside that adjoining room P.W.2 P.W.3 her another brother Sudhir and old step mother were sleeping. She further stated that one has to pass through the room where P.W.2 and others were sleeping to come to her room and that adjoining room was closed with a tin door. In view of the room positions as narrated by the victim it becomes clear that if someone wanted to enter into the room of the victim he has to first open the tin door and then enter inside the room where In the cross examination the victim stated that P.W.3 has stated that the appellant was related to P.W.2 and others were sleeping and after crossing that room he could come inside the victim’s room. The victim further stated that there was no light inside the room where she was sleeping when the occurrence took place. She further stated that at times when that tin door was opened that would produce some sound. Therefore when there was darkness inside unless a person is well accustomed to the room position as well as the sleeping room of the victim it would be very difficult on his part to reach near the victim and there was every chance of being detected inside the adjoining room where P.W.2 and others were sleeping. him as his agnatic nephew. P.W.2 has stated that previously the appellant was frequently coming to their house and taking food in their house as he was related to them. Thus the appellant being related to the victim and a frequent visitor to the house of the victim the possibility of his knowing every titbit of the house of the victim cannot be ruled out. There is no allegation in the F.I.R. relating to commission of rape on the victim for which the case was registered under section 354 of the Indian Penal Code. Though the victim stated about the commission of rape on her during her examination in chief but it has been confronted to her and proved through the investigating officerthat she had not stated in her previous statement that the appellant squeezed her breast with one of his hands and that he removed his wearing lungi and became naked and that he inserted his penis inside her vagina and that P.Ws.2 and 3 saw the appellant raping her. Admittedly there is no medical evidence relating to the commission of rape on the victim. The victim stated to have shouted when the appellant inserted his penis inside her vagina for which both P.Ws.2 and 3 came to her room. This statement seems to have been developed during trial for which it cannot be accepted. The victim s version in the Court was of rape but when it is compared with the one given during investigation certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore the victim cannot be said to be a truthful witness. Now coming to the charge of attempt to commit rape the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features but its absence is not always a decisive factor. There must be material to show that the appellant was determined to have sexual intercourse with the victim in all events and the overt act committed by him must show that it had gone beyond the stage of preparation and it reached the stage of attempt but his intention to commit the offence of rape could not materialise for some kind of interference. The victim who was aged about twenty to twenty one years at the time of occurrence has stated in the cross examination that at the time of struggle with the appellant both of them fell down on the ground from the cot and the cot became upside down but the appellant did not leave her and he had pressed her hands with his hands. She further stated that at the time of struggle with the appellant her younger brother Susil who was sleeping by her side woke up from his sleep but Susil did not separate the appellant nor tried to assault the appellant out of fear as he was a boy aged about seven years only. If according to the victim after falling down from the cot the appellant was pressing her hands with his hands it is obvious that in such position her mouth was open and there was no difficulty on her part to raise shout as by that time her younger brother had already woke up and in the adjoining room her other family members were sleeping. The victim further stated in the cross examination that when the appellant lied down over her she raised hullah but the appellant pressed his hands on her mouth and about ten to fifteen minutes thereafter P.Ws.2 and 3 came to her room holding a lantern which was burning. Why the victim raised hullah late For raising hullah late even after the appellant was sleeping over her in a naked condition after making her naked the explanation given by the victim that appellant was pressing his hands on her mouth is very difficult to be accepted. She stated that she was unable to separate the appellant and to free herself from the clutches of the appellant as he was holding both of her hands with one of her hands and had pressed her mouth by using the other hand. She further stated that the appellant had pressed both her hands on her chest. She further stated that the appellant removed his hand from her mouth and sat over her and while so sitting he removed her wearing saree with one of her hands. In that position the victim had got chance also to shout but she did not. She further stated that she was unable to give kicks to the appellant as he was sitting over her and her legs were not approachable or reaching the body of the appellant. She further stated that she was unable to bite the hands of the appellant as he had pressed both of her hands with one of his hands on the chest. Thus it appears that there were many opportunities earlier for the victim to raise shout and protest but she did not do that. P.W.2 stated that when she entered inside the room where the victim was sleeping she found the victim was lying complete naked on the earthen floor and the appellant was lying over the victim and the wearing saree of the victim and gamuchha of the appellant were lying inside the room. P.W.3 stated in the chief examination that he came to the room of the victim on being called by P.W.2 and he saw the appellant lying naked over the victim however in the cross examination he stated that when he arrived in the room of the victim he found the victim and P.W.2 were assaulting the appellant. Thus it seems that P.W.3 reached a little late than P.W.2 in the room of the victim on being called by P.W.2 and he had not actually seen the appellant lying naked over the victim but seen the assault part. The statement of P.W.6 that he had also seen the appellant was lying over the victim on the ground and both of them were in naked condition cannot be accepted as he stated to have come to the room of the victim after P.Ws.2 and 3. The evidence of assault on the appellant by fire wood gets corroboration from the evidence of the doctor who examined the appellant on the night of occurrence in Titilagarh Govt. Hospital and noticed two lacerated wounds and one bruise and also the station diary entryof Titilagarh police station made at the instance of the brother of the appellant. In view of the room positions and the surrounding circumstances under which the occurrence stated to have happened it is evident that the appellant had entered inside the room of the victim in the night but the victim’s conduct and her late reaction in raising shout probably on the arrival of P.W.2 makes it clear that she was a consenting party and after having been caught red handed with the appellant in a compromising position inside her bed room in the night by P.W.2 the victim tried to put the entire blame upon the appellant as perpetrator of the crime in order to save her own skin among her family members as well as in her society. Law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape if the evidence on record indicates that the victim was a consenting party then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance the Court may find that there was no force or threat of force or the act was not against her will. Consent does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence submission thereafter is not consent. Verbal resistance apart the woman can give effective obstacles by means of hands limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion acquiescence non resistance or passive giving in when volitional faculty is either clouded by fear or vitiated by duress cannot be deemed to be a consent as envisaged in law. In view of the foregoing discussions the conviction of the appellant under sections 376 511 and 354 of the Indian Penal Code is not sustainable in the eye of law. Coming to the charge under section 457 of the Indian Penal Code it requires commission of lurking house trespass or house breaking by night in order to commit any offence punishable with imprisonment. Lurking house trespass is defined under section 443 of the Indian Penal Code. In order to constitute the offence of lurking house trespass the offender must have taken some active means or precautions to conceal his presence while committing house trespass. The purpose of concealment is to avoid being noticed by some person who has a right to exclude or eject the trespasser from the building tent or vessel which is the subject of trespass. The mere fact that a house trespass is committed by night does not make the offence one of lurking house trespass. There is no evidence that the appellant had taken precautions to conceal the house trespass. As it seems he had come inside the house of the victim wearing lungi and gamuchha. There is also no evidence that any housebreaking as defined under section 445 of the Indian Penal Code has been committed by the appellant. In the illustrationof that section it is stated that if ‘A’ committed house trespass by entering Z’s house through the door having opened a door which was fastened that is housebreaking. Fastening the door means to firmly fix or fix securely. ‘Unfastening’ means to open something that was fastened. The victim stated in the cross examination that the entrance of the house was closed by tin tati and one bamboo lathi was pressed on that tin tati but there was space through which one can remove the bamboo lathi by inserting his hand and open that door. Thus there was no fastening of the door. Therefore I am of the humble view that lurking house trespass or housebreaking has not been proved by the prosecution and as such the ingredients of the offence under section 457 of the Indian Penal Code are not attracted. However there are enough materials to make out an offence of house trespass as defined under section 442 of the Indian Penal Code which is punishable under section 448 of the Indian Penal Code. Even if no specific charge is framed under section 448 of the Indian Penal Code but since charge was framed under higher offence like section 457 of the Indian Penal Code it cannot be said that any prejudice is caused to the appellant in convicting him under section 448 of the Indian Penal Code. Accordingly the conviction of the appellant under section 457 of the Indian Penal Code is set aside instead he is found guilty under section 448 of the Indian Penal Code. Now coming to the question of sentence to be imposed on the appellant for his conviction under section 448 of the Indian Penal Code the maximum substantive sentence provided for such offence is one year or the sentence can be fine only which may extend to one thousand rupees or with both. The appellant was arrested and produced in Court during investigation on 17.10.1989 and he was throughout in judicial custody till he was released on bail by the learned trial Court on 02.06.1990 on the basis of the bail order passed by this Court in this criminal appeal on 25.05.1990. Therefore the appellant has remained in judicial custody for more than seven months. Keeping in view the fact that more than thirty one years have passed since the date of occurrence I sentence him to undergo imprisonment for the period already undergone by him. In the result conviction of the appellant under sections 376 511 354 and 457 of the Indian Penal Code is hereby set aside instead the appellant is convicted under section 448 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him. The criminal appeal is allowed in part. Lower Court s record with a copy of this judgment be trial Court Before parting with the case I would like to put on record my appreciation to Mr. Rajjeet Roy the learned counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees which is fixed at Rs.5 000 rupees five thousand). ... S.K. Sahoo J. Orissa High Court Cuttack The 11th December 2020 PKSahoo RKM

A girl is not a cattle or non-living thing but a living independent soul having rights: Himachal Pradesh High Court

Suppressing or oppressing the freedom of an individual, which is contrary not only to his/her spiritual and religious rights but also constitutional rights, is to be deprecated. The balance needs to be maintained between individual, family, and societal interests and that should be in consonance with the constitutional mandate. Himachal Pradesh High Court gave the judgment in the case of Sanjeev Kumar vs. State of Himachal Pradesh [Criminal Writ Petition 2of 2021] citing the above-stated reasons by a bench consisting of Hon’ble Justice Vivek Singh Thakur. In the instant case, the petitioner and Miss Komal Parmar made the petition against Komal’s family members for threatening them and detaining his sister and Miss Komal. The couple intended to marry each other and made an application for the same u/s 5 of the Special Marriage Act, 1954 supported by their affidavits. After the submission of the application, the petitioner and Ms. Komal Parmar had decided to live together, but in opposition to inter-caste marriage; the family, relatives, and friends of Ms. Komal Parmar had become furious and had started extending threats. It was claimed in the petition that Ms. Komal Parmar had been detained by the respondent, her family members and friends against her wishes, so as to prevent solemnization of marriage and the petitioner was being continuously threatened by the family and also by other persons belonging to their caste. And therefore the writ petition was filed by the petitioners to provide appropriate security to his family members & to himself as there was an imminent threat to their lives and property. Thereafter, a complaint was made by the petitioner stating that he had married Komal but despite this fact, her parents took her away and continued to threaten them. On the contrary, Komal’s family denied all the allegations against themselves and stated that Ms. Komal Parmar was suffering from mental depression, and because of her mental health problem, she was not in a proper state of mind to understand the things to go for marriage. However, she contended that her family harassed her and administered some injections, and forcibly took her to the Mental Health Specialist. She stated that “Though she has stated that she has been thrashed, harassed and tortured while she was in the custody of her parents and others and, thus, she does not want to face such trauma again by opting to live with parents, but at the same time she has expressed that out of deep love for family and regards for others, she does not want to initiate any action against her parents”. Komal stated that the main opposition for marriage was for the difference in caste and rest submissions by her father were nothing but an attempt to defer the solemnization of marriage so that avoidance of her marriage with petitioner could be managed by the passage of time by hook or crook. Observing the arguments of both the parties, the court stated that “No doubt, parents are always worried about future and well being of their child and, thus, apprehension of respondent No.3 may not be said to be ill-founded but it is also true that parents, relatives, and friends cannot force an adult to act according to their whims and wishes by suppressing the wish and desire of the individuals”.

Hig h C o urt of H.P on 24 02 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Writ Petition No.21 Date of Decision : February 19 2021 Sanjeev Kumar ….Petitioner Versus Sate of H.P. and others ….Respondents. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting Yes. For the Petitioner : Mr. Rakesh Chauhan Advocate. For the respondents : Mr. Dinesh Thakur Additional Advocate General for respondents No.1 & 2 State. Mr. Ramakant Sharma & Mr. Arun Raj Advocates for respondent No.3. Petitioner Sanjeev Kumar alongwith his sister Smt. Pooja Devi wife of Shri Mukesh Kumar resident of Village Jalari Sokheyan P.S. Nadaun District Hamirpur Himachal Pradesh in person. Ms Komal Parmar alongwith LC Reena No.1584 Police Station Dhalli and LC Babita No.649 Police Post Mashobra. Shri Ashwani Kumar respondent No.3 in person.Vivek Singh Thakur Judge This petition has been preferred by petitioner Sanjeev Kumar with submissions that he and Ms Komal Parmar for the last many years are friendly and are having liking towards each other and ultimately they have decided Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …2… to marry each other but for the reason that they belong to different castes as petitioner belongs to a Scheduled Caste family whereas Ms Komal Parmar belongs to a Rajput family an application under Section 5 of the Special Marriage Act 1954 was presented by the petitioner and Ms Komal Parmar supported by their respective affidavits before Special Marriage Officer on 1.2.2021. It is also pleaded on behalf of the petitioner that application and affidavits were prepared on 29.1.2021 but for non availability of Special Marriage Officer on that day as well as on 30.1.2021 the application was presented before the concerned authority on 1.2.2021 because 31.1.2021 was a Sunday and immediately after submission of application petitioner and Ms Komal Parmar had decided to live together but for opposition to inter caste marriage family relatives and friends of Ms Komal Parmar had become furious and had started extending threats and in such circumstances petitioner and Ms Komal Parmar left Hamirpur and took a shelter at Palampur on 1.2.2021. On the same day respondent No.3 Ashwani Parmar father of Ms Komal Parmar alongwith other persons went to the village of petitioner and seized the house of petitioner to mount pressure and family of petitioner was threatened and maltreated and even threat was extended to abduct Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …3… the sister of petitioner in lieu of Ms Komal Parmar. After knowing about such incident petitioner and Ms Komal Parmar had decided to come back from Palampur to Hamirpur however when they reached near Jawalamukhi 4 5 vehicles intercepted the vehicle in which petitioner and Ms Komal Parmar were travelling and around 20 25 persons came out of those vehicle and overpowered Ms Komal Parmar after beating petitioner and had taken her alongwith them. 2. It has been claimed in the petition that Ms Komal Parmar has been detained by respondent No.3 her family members and friends against her wishes so as to prevent solemnization of marriage of petitioner with Ms Komal Parmar and petitioner is being continuously threatened by the family and friends of Ms Komal Parmar and also by other persons belonging to their caste. Further that the only reason that petitioner belongs to a caste which is considered by family relatives and friends of Ms Komal Parmar a lower caste is the cause of whole incident leading to abduction and illegal detention of Ms Komal Parmar and thus petitioner has prayed for production of Ms Komal Parmar by way of present Writ Petition and also for direction to respondents State to provide appropriate Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …4… security to the petitioner and his family members as there is imminent threat to their lives and property. 3. In sequel to order dated 9.2.2021 directing respondents to produce Ms Komal Parmar she had attended the Court on 12.2.2021 alongwith Police Officers officials. On that day during interaction with the Court Ms Komal Parmar instead of returning to parental home had expressed her desire to live in Nari Niketan Mashobra District Shimla and therefore she was directed to be taken to the said Nari Niketan with direction to produce her in the Court on 16.2.2021 with further direction to respondent No.3 her father to remain present in the Court on next date of hearing. Thereafter case was adjourned for 16.2.2021 and 18.2.2021 and has been taken up for final decision today i.e. 19.2.2021. During this period Ms Komal Parmar stayed in Nari Niketan alone without having any facility of Mobile Phone etc. and during this period she was having sufficient time to consider and reconsider the issues of her life to decide her fate. On each hearing there was interaction with Ms Komal Parmar her father and petitioner Sanjeev Kumar in presence of all of them and individually also in absence of others. 4. Status Report has also been filed by the Police stating therein that on 2.2.2021 one Ajay Kumarof Ms Komal Parmar) had submitted a complaint in Police Station Nadaun that Ms Komal Parmar was missing from 5.30 p.m. on 1.2.2021. Said complaint was entered in the Daily Diary Register information whereof was sent to all Police Stations and Police Posts in Himachal Pradesh. On 5.2.2021 complainant Ajay Kumar had informed the police that Ms Komal Parmar was found on 3.2.2021 at Jawalaji and requested to close the report of missing person. This information was also entered in the Daily Diary Register. 5. It is also stated in the Status Report that on 4.2.2021 petitioner Sanjeev Kumar had also filed a complaint via ‘CM Helpline’ alleging that he has married Ms Komal Parmar at Hamirpur Court on 1.2.2021 but despite that Ms Komal Parmar has been taken by her parents who are extending threats to his family however during inquiry of this report on 7.2.2021 petitioner was not found at home and as per statement of his father petitioner was bachelor earning his livelihood as a Drummer by beating drum in marriages and social gatherings. As per Status Report father of petitioner had stated that petitioner had gone to attend a retirement function on 1.2.2021 but thereafter had not come back and he had heard that petitioner had married Ms Komal Parmar daughter of respondent No.3 but hewas not Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …6… having any other clue in this regard except this information on the basis of hearsay. 6. As per Status Report on 5.2.2021 petitioner Sanjeev Kumar had also filed a complaint before Superintendent of Police Hamirpur for inquiry and action as per law about threats being extended to him and his family members. On receiving the said application complaint from the Office of Superintendent of Police Station House Officer Police Station Nadaun had deputed HC Desh Raj for inquiry and the said Police Officer had visited house of the petitioner but petitioner was not found at his residence and his parents were not having any clue about him. 7. Lastly it is stated in the Status Report that on 9.2.2021 police officials had visited the house of Ms Komal Parmar where her father Ashwani Parmarhad produced an OPD Slip dated 3.2.2021 scribed by Mental Health Specialist Nagrota Bagwan District Kangra and respondent No.3 had further informed that Ms Komal Parmar had not married anyone and was not in a condition to make a statement. 8. Respondent No.3 father of Ms Komal Parmar has also filed reply wherein allegation of opposition to marriage of his daughter with petitioner on account of caste Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …7… has been denied being false and frivolous with averment that respondent No.3 had never raised such issue. It is stated in the reply that Ms Komal Parmar is suffering from mental depression and because of her mental health problem she is not in proper state of mind to understand the things to go for marriage with the petitioner. To substantiate this plea medical prescription slip pertaining to mental sickness of Ms Komal Parmar has also been placed on record. It is further stated that petitioner cannot solemnize marriage with Ms Komal Parmar until and unless she opts for the same of her own volition and free consent on attaining proper state of mind by her after recovery from illness. 9. Ms Komal Parmar present in the Court has refuted the allegations of her ill mental health with further submission that she was slapped brutally on 2.2.2021 at Jawalaji and thereafter she was beaten and administered some injection and forcibly taken to Mental Health Specialist on 3.2.2021 and 10.2.2021. She has further stated that she is not having any mental health problem and that she is a student and has appeared in BBA Final Year Examination a few months ago. She has also endorsed the contents of the petition and incidents narrated therein with effect from 29.1.2021 to 2.2.2021. Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …8… Though she has stated that she has been thrashed harassed and tortured while she was in custody of her parents and others and thus she does not want to face such trauma again by opting to live with parents but at the same time she has expressed that out of deep love for family and regards for others she does not want to initiate any action against her parents and others. 10. So far as allegation that Ms Komal Parmar is suffering from mental illness is concerned when this allegation was vehemently refuted by Ms Komal Parmar and she expressed her intention to go for her examination by Medical Board with further request to conduct inquiry about circumstances in which she was taken to Mental Health Specialist and subjected to forcible examination and medicaton respondent No.3 through his counsel on 16.2.2021 had stated that respondent No.3 would not be pressing his stand taken regarding mental health of Ms Komal Parmar on the basis of prescription slips issued by Dr. N.K. Sharma but it was stated that parents of Ms Komal Parmar were and are worried about future of their daughter. It is also stated by respondent No.3 in the Court that he has no opposition for marriage for difference of caste but for poor financial condition of unemployed petitioner he is afraid that it would not be possible for the petitioner to Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …9… maintain Ms Komal Parmar and she would be in great difficulty after solemnization of marriage with petitioner and further that he intends to convince his relatives and friends for permitting Ms Komal Parmar to marry petitioner in case she is determined to marry him and thus he has asked for custody of Ms Komal Parmar for 5 6 months with assurance that he would solemnize her marriage with the petitioner thereafter. 11. Ms Komal Parmar has submitted that main opposition for marriage is for the difference in caste and rest submissions by her father are nothing but an attempt to defer the solemnization of marriage so that avoidance of her marriage with petitioner could be managed by passage of time by hook or crook. 12. We are living in a State governed by the Constitution and discrimination on the basis of caste by denying of right to choose spouse is in violation of Fundamental Rights guaranteed under the Constitution of India. 13. So far as opposition to marriage for difference of caste is concerned the same is result of spiritual as well as religious ignorance leading to behaviour in violation of constitutional mandate despite the fact that Constitution is an embodiment of ancient values of Bhartiya Society. Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …10… Independence of thought to an individual is fundamental feature of Indian culture. 14. Though people advocating for continuation of caste system and discrimination based thereon relates it with religion however they do so because of ignorance as such thoughts are contrary to basic and true essence of religion. It is basic spiritual as well as religious mandate of all religions that God is everywhere in everyone and everyone is equal before God. Not only this it is also considered that existence of God is not only in living creatures but is also in non living things and thus no one is to be discriminated on account of sex caste creed race colour or financial status. 15. In Shrimad Bhagwat Gita also which is said to be message of God it is propounded that the one who discriminates amongst the creatures of God and do not see presence of God everywhere can never attain self realization and blessings of God. Discrimination on the basis of caste sometime is propounded on the basis of some Samritis and Puranas forgetting the basic principle that the highest source of religious norms are Vedas and anything in any other religious texts including Samritis and Puranas which is contrary to the principles propounded in Vedas is to be considered ultra vires to Vedas and thus Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …11… contrary to Dharma and therefore is to be discarded. Vedas propound a principle of equality and betterment of all without any discrimination by pronouncing that we should work together eat together march together and live together for betterment and progress of all. Discrimination on the basis of caste under the garb of religion is anti thesis of basic spiritual and religious principles which are unfortunately relied upon for discrimination. Therefore discrimination on the basis of caste is not only in violation of constitutional mandate but also in opposition to real Dharma. 16. Right to marry or for valid reasons not to marry as well as right to choose spouse is a well recognized right in Indian society since ancient era. Inter caste marriages were also permissible in ancient Indian society but for evils of Medieval period wrong perceptions have clouded the rich values and principles of our culture and civilization. Marriage of Shantunu and Satyavati and Dushyant and Shakuntla are well known examples of inter caste marriages. Recognition of right to choose spouse by a girl is well reflected in the case of Savitriand Satyavan where Savitri had travelled across the Sub Continentin search of suitable match for her and ultimately she had selected a Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …12… Woodcutter Satyavan as a suitable spouse which was accepted by her father and society. Devhooti a daughter of King had also married with Rishi Kardam a researcher who was neither King nor Prince and her choice was accepted by her father and society. Another well known example of exercise of such right is Vidyottama wife of Kalidas. 17. To my little knowledge oldest example of marrying a person of choice is marriage of Sati with Lord Shiva which was solemnized in defiance and against wishes of her father King Daksha Prajapati. Another more than 5000 years old example of choosing the spouse according to choice of the girl is of Rukamani and Lord Krishna as Rukmani was having liking and wish to marry Lord Krishna whereas her brother was intending to arrange her marriage with Shishupal whereupon Rukmani had wrote a letter to Lord Krishna to take and accept her as his spouse and Lord Krishna did so by taking her from the Mandapa. Similar example is the marriage of Subhadra and Arjun where family members were intending to marry Subhadra somewhere else whereas Subhadra had chosen Arjun as her spouse. 18. Leaving apart the history and ancient values of Indian society we all are living in a country governed by Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …13… constitutional mandate and ‘Rule of Law’ is to prevail in all eventualities. 19. In present case antecedents and character of petitioner is not under cloud and petitioner and Ms Komal Parmar have filed a joint application for registration of their marriage and not only this during hearings of the case they have expressed their desire to marry and register the marriage not only under Special Marriage Act 1954 but also to solemnize marriage according to Hindu rites and rituals in any temple or any other place in case they are permitted to move freely without any oppression suppression and fear on the part of parents family relatives and villagers of Ms Komal Parmar. It is not a case where petitioner is asking for custody of Ms Komal Parmar but a case where he has prayed for production of Ms Komal Parmar in order to ascertain her ‘Free Will’ and on production Ms Komal Parmar has narrated the tail of her sorrow faced by her after her abduction on 2.2.2021 from Jawalaji and has expressed her desire not to go to her parental house and also to the house of petitioner but firstly to Nari Niketan and lateron to the house village of married sister of petitioner namely Smt. Pooja Devi who is known to her since childhood and is her friend. Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …14… 20. Learned counsel for respondent No.3 relying upon a Division Bench Judgment of Kerala High Court in case Dr. Lal Parameshwar v. Ullas N.N. and others 2014 Cr.LJ 1921 has contended that Ms Komal Parmar is not under any illegal confinement or detention or punishable restraint by further contending that though there have been changes in social and moral values and our society is recognizing freedom of every citizen but even then such liberties cannot be stretched beyond limits nor can such freedom be made a weapon to destroy our fundamental values and social establishments like families which undoubtedly concede authority on parents to advise and guide their children and general principle cannot be set that parents are in all circumstances bound to concede absolute decisional autonomy to their children even if they have attained majority and remain helpless even in situations where their wards have taken wrong and immature decisions which will be disastrous not only to the wards themselves but also to the family itself. It is further contended that such parental authority except in cases such as those pointed out in K.N. Sadanandan v. Raghava Kurup & others AIR 1975 Kerala 2 should be out of bounds for a Writ Court because such parental authority is exercised for ultimate benefit of the ward and immature Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …15… reactions of wards should not be allowed to influence judgments since the ultimate aim and purpose of all exercise undertaken by the Court is welfare of the ward. 21. In K.N. Sadanandan’s case Marriage Certificate produced before the Court was doubtful and detenu was staying with her own parents and except allegations made by the petitioner there was nothing before the Court to show that she was under restraint or was being illegally detained by the parents rather in criminal proceedings pending between the parties detenu had stated that she was staying with her parents of her own free will and was not being wrongfully confined and in this background the Court had not found the facts sufficient for entertaining the Habeas Corpus. 22. In Dr. Lal Parameshwar’s case also petitioner was not married to the detenu but was having relations with more than one ladies and it was apparent from the conversation of Mobile Messages between the petitioner and the detenu that detenu was not having good relations with the petitioner who was having relationship with at least six other women and had attempted to assault not only himself but also detenu that too in the premises of the Court and the father with whom detenu was residing had allowed her to work in the Hospital and had not prevented Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …16… her either from reporting to work or from appearing in Postgraduate Entrance Examination but was keeping her with him in order to ensure her safety and had removed internal locks of her room and she was always at liberty to move inside the house and thus he was acting in her welfare exercising his natural right as parent of his only daughter and under these circumstances observations relied upon by learned counsel for respondent No.3 were made by the Court that petitioner was only attempting to somehow or other get custody of the detenu without caring for her future welfare and well being and therefore custody of father was not considered to be illegal detention of the detenu. The facts of judgments in K.N. Sadanandan’s case and Dr. Lal Parameshwar’s case are not similar to present case. 23. Relying on Mohd. Ikram Hussain v. The State of Uttar Pradesh & others AIR 1964 SC 1625 respondent No.3 has contended that proceedings under Article 226 of the Constitution are discretionary and that discretion does not deserve to be exercised in present case for welfare of Ms Komal Parmar. For the material on record I do not find any force in such contention. 24. In Dr. Lal Parameshwar’s case a judgment of another Division Bench of the same Courtin Rajmohan v. State of Kerala 2009KLT 466 has been referred. Though the said judgment has not been considered a binding precedent in Dr. Lal Parameshwar’s case for being passed without taking note of judgment of Full Bench of that Court in K.N. Sadanandan’s case but I am in agreement with the observations made in Rajmohan’s case quoted in Dr. Lal Parameshwar’s case which read as under: “14. It is next contended that the 6th respondent being the father of the alleged detenu has an unbridled right to keep her "in custody". The keeping of an adult major woman in the custody of her parent even against her will and desire will not amount to improper restraint or detention confinement as to justify invocation of the jurisdiction under Art.226 of the Constitution contends the learned counsel for the 6th respondent strenuously. The contention of the learned counsel for the 6th respondent virtually is that parental authority is sufficient to justify such "custody" even against the will and wishes of the detenu. 15. We are afraid that such a general principle of law cannot be accepted. A person who has attained majority is in the eye of law a person and a citizen entitled to all rights and privileges under the Constitution. There can be no question of an adult major woman being kept in the "custody" of anyone else against her wishes desire and volition. Even if it be the parents such custody cannot in the absence of better reasons be justified. There is no contention that she suffers from any debility which obliges her to be in the "custody" of any other. An adult major woman residing with parents or husband cannot be held to be in the "custody" of such parent or husband as to deny to her her rights to decisional autonomy and to decide what is best for her. Parental authority would certainly extend until a child attains majority. But thereafter though the parent and the child may be residing together it can never be held that such child is in the "custody" of Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …18… the parent. An adult major woman is not a chattel. The theory that until marriage a woman must be under the custody and confinement of her father and thereafter in the custody and confinement of her husband cannot possibly be accepted in this era. Such an adult person is certainly entitled to take decisions which affect her. Parental authority or matrimonial authority will not at any rate give right to such parent or husband to keep such woman under restraint confinement or detention against her will. The parent may feel that he has the monopoly for taking correct decisions which concern his daughter but that impression of a doting patriarchal parent cannot blindly be accepted and swallowed by a Court. The parental authority may extend to advice counsel and guidance. But certainly it cannot extend to confinement detention or improper restraint against the wishes and volition of the adult major daughter. Right to take decisions affecting her will certainly have to be conceded to her even assuming that decisions taken may at times or in the long run prove to be not wise or prudent. 16. In this context the learned counsel for the 6th respondent places reliance on two decisions of the earlier Division Benches of this Court in Prasadhkumar v. Ravindran 1992 1 KLT 729and Sreekesh v. Mohammed Asharaf 2003 1 KLT 397 . 17. We have been taken through the decisions in detail. We are unable to agree that they lay down a proposition that under no circumstances when there is an allegation that parental authority is invoked to justify improper restraint or confinement detention powers under Art. 226 cannot be invoked. It depends on the facts of each case. Merely because beneficent parental authority is exercised over an adult child this Court will not invoke its jurisdiction under Art.226 of the Constitution. Sagacity and judicial wisdom are required to identify the fit cases in which such jurisdiction can need or need not be invoked. The observations in those decisions will have to be understood carefully and cautiously. It would be myopic and obscurantist to understand those observations as sufficient to concede to the parent a right to deny liberty and freedom to his adult daughter and to move her out of the country against her will keep her away from the Court before which proceedings are initiated. We are unable to so Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …19… understand those observations. Home and parental authority are not out of bounds for a constitutional court while performing its duty to translate the constitutional promise of freedom and liberty and while responding to the prayer of a citizen who has come to court complaining about negation of such rights in exercise of his fundamental constitutional right to move the court for enforcement of such right. 18. This Court comes across many such cases of alleged detentions confinement compulsive restraint placed on adult daughters by parents. We have taken a consistent stand that the decisional autonomy of such an adult daughter will have to be respected. An adult woman cannot be treated as chattel by this Court. Her rights as an equal citizen will have to be respected and cannot be denied. In cases where we feel that the decision of such alleged detenue does not appear to be voluntary and genuine we resort to the course of granting them time to reflect contemplate and ponder. We give them opportunity to be accommodated in neutral venues for some period to facilitate rational and dispassionate evaluation sometimes for long periods. We give parents opportunity to counsel their children during such period. But ultimately we do respect the decisional autonomy of such adult children. We are convinced that that is the proper course to be followed in all cases. To do otherwise would simply be denial of human rights of an adult woman to take decisions affecting her future. That would certainly be denial of the right to life guaranteed under Art. 21 of the Constitution of India. The mere fact that the decision may turn out to be incorrect or bad does not justify the denial of the right to take a decision. We do not permit our concepts of what is right and good for them to override their own assessment of what is right and good for them. We do not permit the concept of othersof what is right and good for them to override their own concepts. Concept of right and good may vary with the times. This generation s concept of right and wrong may not find acceptance with the next. No generation or parent can claim infallibility and enforce its his concept of right and wrong on the succeeding. Suffice it to say that we do not agree with the learned counsel that Prasadhkumar and Sreekeshconcede to the parents any unbridled rights to usurp the decisional autonomy of their adult Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …20… daughters and keep them in "custody" against their desire in exercise of their parental authority or duty. We do not agree that the said decisions lay down that this Court cannot exercise jurisdiction under Art.226 of the Constitution of India in such a situation. We do not agree that the mere fact that the petitioner s marriage with the alleged detenu may not be strictly legal is sufficient to deny relief. At least it can be said that in the present era of social and societal development in this State such understanding of the dictum is impermissible. In the peculiar facts of those cases and to cater to the interests of justice in such situations the Courts had followed such courses while considering invocation of the jurisdiction under Art.226." 25. Learned counsel for the petitioner has put reliance on Shafin Jahan v. Asokan K.M. & others 16 SCC 368 wherein it has been observed in majority decision as under: “28. In the instant case the High Court as is noticeable from the impugned verdict has been erroneously guided by some kind of social phenomenon that was frescoed before it. The writ court has taken exception to the marriage of respondent No. 9 herein with the appellant. It felt perturbed. As we see there was nothing to be taken exception to. Initially Hadiya had declined to go with her father and expressed her desire to stay with respondent 7 before the High Court and in the first writ it had so directed. The adamantine attitude of the father possibly impelled by obsessive parental love compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him. True it is she had gone with respondent 7 before the High Court but that does not mean and can never mean that she as a major could not enter into a marital relationship. But the High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …21… And that is where the error has crept in. The High Court should have after an interaction as regards her choice directed that she was free to go where she wished to. . 52. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his her meaningful existence. To have the freedom of faith is essential to his her autonomy and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus we would like to call it indispensable preliminary condition. 53. Non acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction the centripodal value of liberty should allow an individual to write his her script. The individual signature is the insignia of the concept. 54. In the case at hand the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his viewpoint or position cannot be allowed to curtail the fundamental rights of his daughter who out of her own volition married the appellant. Therefore the High Court has Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …22… completely erred by taking upon itself the burden of annulling the marriage between the appellant and respondent 9 when both stood embedded to their vow of matrimony.” In concurring judgment Hon’ble Mr. JusticeD.Y. Chandrachud has observed as under: “75. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major she or he is not under illegal confinement which the court finds to be a free expression of will that would conclude the exercise of the jurisdiction. In Girish v Radhamony K 16 SCC 360 a two Judge Bench of this Court observed thus:"3 ….In a habeas corpus petition all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution."” 26. In Lata Singh v. State of U.P. & another 5 SCC 475 dealing with a case of inter caste marriage the Supreme Court has observed as under: “14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter caste marriage under the Hindu Marriage Act or any other law. Hence we cannot see what offence was committed by the petitioner her husband or her husband s relatives. 16. Since several such instances are coming to our knowledge of harassment threats and violence against young men and women who marry outside Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …23… their caste we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history and this Court cannot remain silent in matters of great public concern such as the present one. 17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence inter caste marriages are in fact in the national interest as they will result in destroying the caste system. However disturbing news are coming from several parts of the country that young men and women who undergo inter caste marriage are threatened with violence or violence is actually committed on them. In our opinion such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country and once a person becomes a major he or she can marry whosoever he she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage. We therefore direct that the administration police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter caste or inter religious marriage with a woman or man who is a major the couple is not harassed by anyone nor subjected to threats or acts of violence and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. 18. We sometimes hear of honour killings of such persons who undergo inter caste or inter religious marriage of their own free will. There is nothing honourable in such killings and in fact they are nothing but barbaric and shameful acts of murder committed by brutal feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.” Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …24… 27. No doubt parents are always worried about future and well being of their child and thus apprehension of respondent No.3 may not be said to be ill founded but it is also true that parents relatives and friends cannot force an adult to act according to their whims and wishes by suppressing the wish and desire of an individual. It is also true that in normal circumstances stay of a child at his home in custody of parents may not construe an illegal detention or unlawful restraint but such stay or custody can be used for a control upon child to a limited extent that too with consent of the child when child is adult and is having right of freedom to take decision with respect to his her own life. The moment control or custody of parent crosses the limits in violation of constitutional mandate and law the same becomes illegal detention or unlawful restraint as such control is not unbridled. 28. Undoubtedly family members are bound and also supposed to follow the norms of discipline and tradition of the family for harmonious living and peace of the family. “Family” is the basic unit of social life and healthy atmosphere of family helps in creating healthy society but at the same time an individual is also basic unit of family. Where an individual is supposed to act in consonance with wishes of other family members and keeping in view the Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …25… traditions of family there at the same time necessary freedom for growth of personality of individual is also necessary for which his her individual rights are also to be protected. Suppressing or oppressing freedom of an individual that too which is contrary not only to his her spiritual and religious rights but also constitutional rights is to be deprecated. Balance is to be maintained between individual family and societal interests and that should be in consonance with constitutional mandate. 29. It is to be remembered that a girl is not a cattle or non living thing but a living independent soul having rights like others and on attaining the age of discretion to exercise her discretion according to her wishes. Unlike ancient western thought wherein a female was supposed to be created by God from rib of a man for enjoyment of man in India a female was always considered not only equal but on higher pedestal than male since Vedic Era except for evils of Medieval Period which are necessarily to be eradicated in present era. 30. In present case as surfaced from the version of Ms Komal Parmar endorsing the incident of abduction and treatment given to her thereafter by her family members relatives and villagers it is more than sufficient to construe Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …26… that such restraint detention or custody was illegal and contrary to constitutional mandate. 31. Ms Komal Parmar on previous dates and today also has been apprised about the financial status and occupation of the petitioner and possible miseries to be faced by her after marriage for no income or low income but despite that she has re affirmed her stand that she intends to marry petitioner Sanjeev Kumar as she is well acquainted with the family and status of family of the petitioner and she is ready to face all eventualities which may come in her life. She has expressed her desire not to accompany her parents or relatives or friends of family but to move independently to the house of her friend Pooja Devi who is also sister of the petitioner. Ms Komal Parmar has also stated that her proposed marriage with petitioner is not prohibited either under any codified law or un codified personal law or custom. 32. Date of Birth of petitioner Sanjeev Kumar is 21.1.1998 and that of Ms Komal Parmar is 29.4.2000 and as such they are 23 and 21 years old adults. Petitioner has made unsuccessful attempt to complete Bachelor of Commerce Degree and now intends to do Electrician Training Course in ITI whereas Ms Komal Parmar has also Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …27… studied in college and has appeared in BBA Examination held during the year 2020. 33. Ms Komal Parmar is a grown up girl of 21 years of age having no infirmity or incapacity to understand each and every aspect of life and to take decision and she has a right to exercise her discretion to choose spouse and to decide the place of her residence. Ms Komal Parmar is major capable of taking her own decisions and is entitled to the right recognized by the Constitution to lead her life exactly as she pleases. During all hearings nothing was observed in her personality so as to construe that she is incapable of ascertaining a free will and she has clearly stated that her parents family members relatives and villagers are forcing her to act contrary to her own free will and pressurizing her to withdraw her submission consent for solemnizing marriage with petitioner with re affirmation that her decision to marry petitioner is well considered and determined after having knowledge of each and every fact with respect to educational qualification caste financial status and landed property of the petitioner and his family. 34. In view of aforesaid discussion and considering the pronouncements referred supra present petition is disposed of with liberty to Ms Komal Parmar to go and reside wherever she wants including house of Pooja Devi Hig h C o urt of H.P on 24 02 HCHP Cr. Writ Petition No.21 …28… as desired by her and also her parental house if desired so by her and with direction to respondents No.1 and 2 to ensure safety of lives and property of petitioner and his family and also Ms Komal Parmar and to provide rapid help assistance to ensure that whenever required. 35. At this stage Ms Komal Parmar has submitted that instead of going to the house of her parents or petitioner Sanjeev Kumar she would like to stay with Ms Pooja Devi sister of petitioner Sanjeev Kumar. However she has submitted that it would not be possible for her to start for village Jalari today itself and therefore tonight she would be staying with Ms Pooja Devi at Shimla and would like to go to village Jalari P.S. Nadaun District Hamirpur Himachal Pradesh tomorrowin the morning. 36. As requested by Ms Komal Parmar Superintendent of Police Shimla and Hamirpur SHOs SadarDistrict Shimla and Nadaun District Hamirpur Himachal Pradesh are directed to depute Police Personnel to escort her from the Court premises to the destination she desires to go today and upto Jalari tomorrowFebruary 19 2021(sd) Vacation Judge.

Court to summon a person who is not named in the FIR under Section 319 of Cr.P.C. : Allahabad High Court

The evidence collected by the investigating officer during investigation are not required to be considered by the court below at the time of summoning the accused under Section 319 Cr.P.C. Said Justice Dinesh Pathak of Allahabad High Court in the matter of Smt Aarti v. State of UP and Another [CRIMINAL REVISION No. – 744 of 2021]. This order was given out in the case’s factual matrix is that, in relation to the dowry death of the first informant’s daughter, a first information report was filed in which the husband, father-in-law, mother-in-law, brother-in-law, and sister-in-law were implicated in the crime of cruelty and harassment with the victim for dowry demand. According to the first information report, the marriage of the first informant’s daughter with Sanjaydeep cost approximately Rs.50 lakhs, but the victim was later harassed for an additional Rs.20 lakhs in dowry. It is also claimed that, while one incident of harassment and cruelty for dowry demand occurred previously, it was settled amicably after the intervention of the family elders. The first informant’s daughter then went to her matrimonial home with her in-laws on October 18, 2018. He learned that his daughter had been admitted to Nayati Hospital in Mathura, where she died as a result of injuries. Following a thorough investigation, the investigating officer filed a charge-sheet on 5.2.2019, in which the husband, father-in-law, and mother-in-law were named as defendants. Smt. Aarti, the current revisionist, was not named as an accused in the charge-sheet. Feeling aggrieved, informant filed an application (paper no. 41Kha) under Section 319 Cr.P.C. to summon the current revisionist and her husband Jaideep Saraswat, also known as Jethani and Jeth, to stand trial alongside three other o-accused against whom the charge-sheet was filed.After reviewing the record, the trial court granted the application (paper no. 41Kha) under Section 319 Cr.P.C. and summoned the present applicant to face the trial along with other co-accused under Sections 498A, 304B I.P.C., and 3/4 of the Dowry Prohibition Act. Learned counsel also asserted that on the date of the incident, the present revisionist was not present at the scene, as evidenced by the CDR report pertaining to the location of Jaideep Saraswat and Smt. Aarti Saraswat’s mobile numbers, which was taken into account by the Investigating Officer in submitting the chargesheet. He also claims that the court below did not consider the statement of the loco pilot, who was piloting the train, recorded under Section 161 Cr.P.C., in which he stated that on the date of the incident, he was piloting the train from Gangapur City to Tughlakabad when all of a sudden one lady came on the middle of the truck and collided with the train. In contrast, Sri Rupak Chaubey, learned counsel for the opposing party no. 2, contended that, with regard to cruelty and harassment for dowry demand, the opposing party no. 2 had previously filed a FIR, which was registered as case crime no. 1130 of 2019 under Sections 498A, 323, 328, 506 I.P.C., and Section 3/4 of the Dowry Prohibition Act. The opposition also claims that the loco pilot’s statement recorded under Section 161 Cr.P.C. has no bearing on summoning the accused under Section 319 Cr.P.C. for trial alongside other co-accused. The aforementioned judgement under Section 319 Cr.P.C. can be exercised by the Court against a person who is not named in the First Information Report or who has no charge sheet filed by police against him, and the accused can be summoned solely on the basis of examination-in-chief of witnesses, without the need for cross-examination, etc. Concerning the Court’s degree of satisfaction for summoning the accused under Section 319 Cr.P.C., the Court stated that the test is the same as for framing charge. 

Court No. 90 Case : CRIMINAL REVISION No. 7421 Revisionist : Smt.Aarti Opposite Party : State of U.P. and Another Counsel for Revisionist : A.K. Mishra Sati Shanker Tripathi Counsel for Opposite Party : G.A Hon ble Dinesh Pathak J Heard learned counsel for the revisionist learned A.G.A. for the State and Sri Sandeep Kumar learned counsel for the opposite party no. 2. The instant revision has been preferred to set aside the impugned order dated 18.02.2021 passed by the Addl. Sessions Judge FTC 1 Mathura in Sessions Trial No. 1219arising out of Case Crime No. 1587 of 2018 under Section 498A 304B I.P.C. Police Station Highway District Mathura whereby the application filed by the opposite party no. 2 under Section 319 Cr.P.C. has been allowed. Factual matrix of the case are that with respect to dowry death of the daughter of the first informant first information report has been lodged wherein husband father in law mother in law brother in law and sister in law under Section 319 Cr.P.C. to summon the present revisionist and her husband Jaideep Saraswat who are Jethani and Jeth to face the trial along with three other o accused against whom the charge sheet was submitted. After going through the record the trial court vide impugned order dated 18.2.2021 has allowed the applicationunder Section 319 Cr.P.C. and summoned the present applicant to face the trial along with other co accused under Section 498A 304B I.P.C. and Section 3 4 of the Dowry Prohibition Act. Learned counsel for the revisionist has submitted that on the date of incident the present revisionist was not present on the place of occurrence which is clearly evident from the report of CDR with respect to location of mobile numbers of Jaideep Saraswat and Smt. Aarti Saraswat which was considered by the Investigating Officer in submitting the chargesheet. He also submits that the statement of loco pilot who was piloting the train recorded under Section 161 Cr.P.C. has not been considered by the court below wherein he stated that on the date of incident he was piloting the train from Gangapur City to Tughlakabad and all of sudden one lady came on the mid of the truck and collided with the train. It is further submitted that on 17.10.2018 she left for her parental house and the said incident took place on 18.10.2019 therefore the present appellant is not in a position to explain as to why and how such incident took place. It is submitted that the evidence which have been collected by the investigating officer during investigation have illegally been ignored by the trial court. There is no clinching and unimpeachable evidence on record to prove the complicity of the present appellants in the commission of crime as mentioned in the FIR beyond reasonable doubt. Learned counsel for the appellant has relied upon the judgement of the Hon ble Supreme Court in the case of Brijendra Singh others vs. State of Rajasthan reported in 2017(7) SCC 706 Per contra learned counsel for the opposite party no. 2 contended that with respect to cruelty and harassment for demand of dowry earlier one FIR was lodged by the opposite party no. 2 which was registered as case crime no. 11319 under Section 498A 323 328 506 I.P.C. and Section 3 4 of the Dowry Prohibition Act. In the aforesaid FIR charge sheet was submitted against all the accused as mentioned in the FIR namely Sanjaydeep Saraswat Mohan LalSmt. PremwatiJaydeep Saraswat Jet) and Smt. Aartiwho is appellant herein. The aforesaid matter was amicably settled between the parties due to intervention of the elders in the family. After the settlement when the victim went to her in laws house she was again subjected to harassment and cruelty for demand of dowry which resulted in her dowry death and first information report has been lodged in this respect. It is further submitted that the husband and father in law both are the railway employees and they have manipulated the statement of loco pilot which has been relied upon by learned counsel for the appellant. During the course of argument he has produced the communication dated 17.9.2019 made by Deputy Superintendent of Police Railway G.R.P. Agra addressed to the first informant in reply under the Right to Information Act stating therein that no such information with regard to the alleged incident has been received in the department from the Station Master concerned as enquired by the first informant. Copy of the aforesaid letter which has been provided by learned counsel for the revisionist is taken on record. It is further submitted that evidence collected by the investigating officer during investigation are not required to be considered by the court below at the time of summoning the accused under Section 319 Cr.P.C. In support of the contention learned counsel has relied upon a judgement of the Hon ble Supreme Court dated 15.3.2021 passed in Criminal Appeal Nos. 298 2921 Sartaj Singh vs. State of Haryana & Another etc.. Sri Rupak Chaubey learned A.G.A. contends that the statement of loco pilot recorded under Section 161 Cr.P.C. has got no much relevance at the stage of summoning the accused under Section 319 Cr.P.C. for facing the trial along with other co accused. He further contends that the trial court has summoned the present appellant after considering the deposition made by P.W. 1 & P.W. 2 which clearly makes out a case for summoning the present revisionist to face the trial. It has also been contended that the CDR simply states the location of the mobile and not the location of the person and therefore on the basis of the CDR it cannot be said that the present appellant who has been summoned by the trial court for facing trial was not present at the place of occurrence. He further submits that for making out a case under Section 304B I.P.C. personal presence of the accused at the place of occurrence is not required under law. A perusal of the order reveals that the Trial Court has given its finding after taking into consideration the documents available on record. Present revisionist was made accused in the F.I.R. with an allegation that she had beaten up the victim. Deposition made by PW 1 & PW 2 who have been cross examined by the defence have prima facie corroborated the complicity of the present revisionists in the commission of crime. Case law of Brijendra Singh cited by counsel for the revisionist is not applicable in the present matter. In the cited case summoning order under Section 319 Cr.P.C. has been concurrently decided by the trial court as well as High Court in favour of the first informant by which accused persons were summoned to face trial along with other co accused Accused appellant has taken plea of alibi. Certain documents had been discussed by the investigating office for not arraigning them as an accused in the charge sheet. After considering the facts and circumstances of the case and the law cited Hon ble Supreme Court has observed that the evidence recorded during trial was nothing more than the statement which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. It was also observed that the trial court would be competent to exercise its power even on the basis of such statement recorded before it in examination in chief. However it was also observed that the in case like the present one which was considered by the Hon ble Supreme Court several evidence were collected by the investigating officer during investigation which suggested otherwise. The aforesaid cited case was arising out of criminal proceedings under Section 147 148 149 323 448 and 302 149 I.P.C. as well as Section 3 3(ii)(v) of the Scheduled Castes and Scheduled TribesAct 1989 whereas in the present matter at hand is arising out of criminal proceedings under Section 304B and 498A I.P.C. wherein the burden of proof is dealt with in different manner. In several judgements it has been held by Hon ble Supreme Court that Section 304B I.P.C. is a stringent penal provisions which has been implemented for dealing with and punishing offence against married women. A conjoint reading of Section 304B I.P.C. and presumptive provisions of Section 113B of the Evidence Act one of the essential ingredients amongst others is that the woman must have been soon before her death subjected to cruelty and harassment for demand of dowry. On the proof of essentials as mentioned in the aforesaid Section it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. It is clear that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304B I.P.C. by preponderance of probability. Prosecution is not required to prove ingredients beyond reasonable doubt otherwise it will defeat the purpose of Section 304B I.P.C. Once prosecution has discharged its initial burden presumption of innocence of an accused would get replaced by deemed presumption of guilt of an accused. In these circumstances burden would then be shifted upon the accused to rebut deemed presumption of guilt by proving his innocence beyond reasonable doubt.In the light of the conspectus discussed above with respect to scope of Section 304B I.P.C. I am of the view that case law of Brijendra Singhwhich has been cited by learned counsel for the applicant is not applicable in the present matter Law expounded by Hon ble Supreme Court enunciating the scope of Section 319 Cr.P.C. in detail in the case of Hardeep Singh Vs. State of Punjab and others 2014SCC 92 is still an important landmark judgement on this point. In the case of Hardeep Singh(Supra) Hon ble Supreme Court has examined the following five questions: i) What is the stage at which power under Section 319 Cr.P.C. can be exercised ii) Whether the word "evidence" used in Section 319Cr.P.C. could only mean evidence tested by cross examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination in chief of the witness concerned iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word evidence" is limited to the evidence recorded during trial iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged " The aforesaid questions have been answered in para 117 of judgement as under: Question Nos.andSCC 9 the Constitution Bench has already held that after committal cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till evidence under Section 319 Section 319 Cr.P.C. significantly uses two expressions that have to be taken note of i.e.Trial. As a trial commences after framing of charge an inquiry can only be understood to be a pre trial inquiry. Inquiries under Sections 200 201 202 Cr.P.C. and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences for the exercise of power for summoning an additional becomes available accused under Section 319 Cr.P.C. and also to add an accused whose name has been shown in Column 2 of the charge sheet. In view of the above position the word evidence in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4 Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination. Question No.Question No.A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accusedhas to be different. Question No.A. A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh". I have very carefully examined the submissions advanced by the learned counsel for the parties and gone through the record. After examining the materials available on record I find that no case is made out for interference by this Court while exercising revisional jurisdiction. Counsel for the revisionist has not been able to point out any such illegality or impropriety or incorrectness in the impugned order which may persuade this Court to interfere in the same. There is also no abuse of court s process perceptible in the same which appears to have been passed after due application of judicial mind. All the facts and circumstances of the case have been appreciated in right perspective and even the law point on the issue has been duly discussed. It is true that summoning of an accused under Section 319 Cr.P.C. cannot be resorted to in a cavalier or casual manner. The standard of sufficiency of evidence which may justify the summoning of an additional accused under Section 319 Cr.P.C. is on much higher footing than the sufficiency of evidence which may persuade the court to summon an accused under Section 204 of Cr.P.C. but it does not go to mean that the standard of sufficiency of evidence in order to justify the summoning of an additional accused under Section 319 Cr.P.C. should be of the same level which is required to be applied at the time of final adjudication on the point of guilt and innocence of an accused. The ratio and obiter as laid down by the Constitution Bench of Hon ble Apex Court in the case of Hardeep Singh v. State of Punjab and others 3 SCC 92 does not appear to have been ignored in this case. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge sheet is filed by police against him and the accused can be summoned only on the basis of examination in chief of witness and need not wait for cross examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C. Court has said that test are same as applicable for framing charge. In view of the above conspectus I find no merits in the instant revision. There is no illegality or perversity in the impugned order in question which is hereby affirmed and the instant revision is dismissed. Order Date : 19.3.2021

Police Surveillance that is not authorized by law and intrudes into personal liberty is unconstitutional: High Court of Telangana

The surveillance done by police authorities in not unrestricted and such surveillance that does not hold the authority of law is unconstitutional as far as it violates a person’s right to liberty. This was decided by the High Court of Telangana in the case of Thumkunta Madhava Reddy v State of Telangana and Ors. [Writ Petition No.18726 of 2020] by single judge bench consisting of Hon’ble Justice P.Naveen Rao. The facts of the case are that the respondents, who are the police in the case, had filed a rowdy sheet against the petitioner on account of his involvement in multiple criminal cases. This called for police surveillance at all times of the day. The petitioner is aggrieved by the act of sending policemen to his home every midnight intruding on his private space and causing him mental disturbance. This petition was filed to call this act unconstitutional and direct the police to minimize their surveillance. It must be noted that in the case at hand, a rowdy sheet was opened which allowed the authorities to prevent crime for which surveillance was necessary. The High Court referred to a case with similar facts being that of Mohammed Qadeer and others v. Commissioner of Police, Hyderabad and another [1999 (3) ALD 60] where it was held “opening of the rowdy sheet against a citizen is undoubtedly fraught with serious consequences. Article 21 of the constitution of India guarantees the right to life with dignity and the right to reputation. Right to reputation is an integral part of the right to life guaranteed by Article 21, and such a right cannot be deprived except in accordance with the procedure established by law”. The Court stated that in enforcing the law they shall not violate the supreme law of the nation. The police are charged with the responsibility of controlling crime. Control of crime necessarily involves prevention of crime for which it is permissible for the police to keep the ‘trouble maker’ under watch. But surveillance of a person that is contrary to the law used as a legal method against the constitution is arbitrary and illegal. Another case highlighted by the court with respect to the extent of police surveillance was Sunkara Satyanarayana v. State of Andhra Pradesh, Home Department and Ord. [1999 (6) ALT 249] where it was held that “surveillance by the police makes very serious inroads into the life of a person. It even grossly violates the right of persons to privacy. Obtrusive surveillance does not leave a citizen alone and the person can never have mental peace and thus his life and liberty at every movement would be restricted”. The Court went on to observe that the petitioner does not have an objection to daytime surveillance but is disturbed when the police intrude on his personal space at late hours. The court thus directed the officers to confine the surveillance to the barest minimum and warranted visiting the residence of the petitioner only during the course of the day in such a manner that is not excessively intrusive. Click here to read the judgement

HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 187220 Date : 19.1.2021 Thumkunta Madhava Reddy S o Late Chitta Reddy Aged About 55 years occ Real Estate R o H No 110148 Pedda Thokatta near Arya Samaj New Bowenpally Secunderabad The State of Telangana AND 5 OTHERS Represented by its Principal Secretary General Administration Spl Law and Order Department Secretariat Hyderabad The Court made the following: PNR J WP No.18726 2020 HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.187220 ORAL ORDER: Heard learned counsel for petitioner Sri Prabhakar Sripada and learned Assistant Government Pleader for Home. In this writ petition petitioner is aggrieved by the action of 6th respondent in sending police men to enter the house of petitioner bearing No.1 10 148 Pedda Thokatta Near Arya Samaj New Bowenpally Secunderabad in the midnight every day ringing the door bell knocking the door waking up the petitioner late night thereby disturbing his sleep as illegal and Learned counsel for petitioner drew the attention to the averments made in paragraph 16 of the affidavit filed in support of the writ petition regarding alleged visits of police constable(s) on various dates at times mentioned in tabulated form as noticed from the Closed Circuit Television Camera recordings. However he submitted that petitioner is restricting his claim to direct the respondent police not to visit his house at late night hours disturb the petitioner and other tenants in the premises and that petitioner has no objection if police want to pay visits to his house during day time. According to learned Assistant Government Pleader having regard to the criminal record of the petitioner a rowdy PNR J WP No.18726 2020 sheet was opened and police are keeping a watch on the moments of the petitioner to prevent committing of further crimes and except maintaining the rowdy sheet and keeping a watch on the moments of the petitioner police are not interfering with the life and liberty of the petitioner. Petitioner was shown as accused in Crime No.387 of 2005 for the offences punishable under Sections 447 and 506 of IPC. After investigation police filed charge sheet and XI Additional Chief Metropolitan Magistrate Secunderabad took cognizance of the offence and petitioner was placed on trial in C.C.No.352 of 2007. Vide judgment dated 5.7.2012 petitioner was acquitted. Petitioner was shown as accused in Crime No.4719 for the offences punishable under Sections 448 427 323 354(B) 506 509 read with section 34 IPC after investigation police filed charge sheet and petitioner is facing trial in C.C.No.770 of 2020 in the of XI Additional Chief Metropolitan Magistrate Secunderabad. Petitioner was also shown as accused in Crime No.474 of 2019 for the offences punishable under Sections 452 302 120(B) 212 read with Section 34 of IPC. After investigation police filed charge sheet and matter is pending at the stage of taking cognizance of the offence vide PRC No.35 of 2020 in the of XI Additional Chief Metropolitan Magistrate Secunderabad. Having regard to the involvement of the petitioner in the above crimes Crime No.283 of 2020 for the offence punishable under Section 107 of Criminal Procedure Code was PNR J WP No.18726 2020 registered and the Special Executive Magistrate Hyderabad passed orders on 15.9.2020 binding over the petitioner for good conduct. Referring to involvement of the petitioner in above crimes rowdy sheet was opened against the petitioner. According to learned counsel for petitioner petitioner was acquitted in Crime No.387 of 2005 and registration of Crime No.2820 binding over the petitioner for good conduct stands set aside in view of the judgment of this Court in Criminal Petition No.46620 dated 5.10.2020 therefore as on today only two crimes are pending against the petitioner. According to learned Assistant Government Pleader in view of involvement of the petitioner in several criminal cases surveillance is necessary whereas according to learned counsel for petitioner even assuming that police are entitled to keep surveillance police cannot disturb the petitioner in the late night hours and cause hardship to him which amounts to uncalled for interference in life liberty and privacy of the petitioner. 8. No statutory instrument deal with opening rowdy sheet and keeping surveillance on a person. The Andhra Pradesh Police Manual deals with various aspects of functioning of police personnel which include registration of crimes investigation conducting of trial and opening of rowdy sheets etc. PSO 601 deals with opening of rowdy sheet. According to Clause A thereof if a person habitually commits attempts to commit or abet the PNR J WP No.18726 2020 commission of offences involving breach of peace disturbance to public order and security a rowdy sheet should be opened and his movements and activities are to be watched. According to Clause B thereof a person bound over for good conduct should be classified as rowdy and rowdy sheet can be opened and continued. On opening the rowdy sheet Police keep watch on movements of the person. According to Police this is necessary as part of their duty to ensure law order and peace in the community and to prevent a habitual offender from possible indulgence of crimes affecting the society at large i.e. to prevent commission of offence. This is nothing but surveillance. 10. Right to life liberty and privacy are sacrosanct to a person. A person is entitled to lead his life with dignity and self respect. These rights flow out of Article 21 of the Constitution of India. Surveillance on person certainly infringes on his right to life privacy and liberty. These rights cannot be infringed except by due process of law. Compelling public interest may require intrusion into privacy of a person but while doing so great care and caution has to be observed. Thus if Police resort to surveillance on the ground that rowdy sheet is opened on petitioner it must show justification impelled to ensure peace and order in the society. 11. The scope and width of Article 21 of the Constitution of India scope of power of police to infringe privacy of a person and scope and ambit of Police Standing Orders were PNR J WP No.18726 2020 vividly analysed and dealt with extensively in two decisions of this Court in Mohammed Quadeer and others Vs. Commissioner of Police Hyderabad and another1 and Sunkara Satyanarayana Vs State of Andhra Pradesh Home Department and others2. In both these decisions it is held that PSOs are non statutory executive instructions and have no binding force of law. 11.1. In Mohammed Quadeer and others it is held: “31. Opening of a rowdy sheet against a citizen is undoubtedly fraught with serious consequences. Article 21 of the Constitution of India guarantees right to life with dignity and the right to live as a dignified man carries with it the right to reputation. Right to reputation is an integral part of right to life guaranteed by Article 21 and such a right cannot be deprived except in accordance with the procedure established by law. Such laws which authorise the Police to open rowdy sheets and exercise surveillance are required to be very strictly construed. Opening of the rowdy sheets and retention thereof except in accordance with law would amount to infringement of fundamental right guaranteed by Article 21 of the Constitution of India. It is true that the State is duty bound at all levels to protect the persons and property from the criminals and criminal activity. Prevention of organised crime is an obligation on the part of the State. Right to Privacy: 32. Fundamental rights and civil liberties exist and can only flourish in an orderly society. Civil liberties and fundamental rights are intimately connected with the nature and dynamics of the Society. It is the duty of the Police to deal with crime and criminals expeditiously and effectively while at the same time holding to the values and concepts of the fundamental rights and the Constitution. Both the competing interests are to be reconciled. This much is clear so far as our Constitutional system is concerned that intrusion into personal liberty without an authority of law is forbidden. Surveillance 1 1999ALD 60 2 1999ALT 249 PNR J WP No.18726 2020 and watching of movements of a citizen by the Police is not a matter of course. Such rights can be exercised by the Police only in accordance with law which permits such surveillance. The action in this regard which is in accordance with law may result in violation of the fundamental rights guaranteed by Article 21 of the Constitution of India. Every citizen has fundamental right and entitled to indulge in harmless activities without observation or interference. It is a right to be left alone. The guarantee in Article 8 of the European Convention of Human Rights that "Everyone has the right to respect for his private and family life his home and has correspondence" reflects both the individual s psychological need to preserve an intrusion free zone of personality and family and the anguish and stress which can be suffered when that zone is violated. The saying that an Englishman s home is his castle would be 6 equally applicable to Indian situation and it can be said that an Indian citizen s home is his castle. 33. Therefore I have no hesitation whatsoever to reject the plea that mere surveillance and watch by the Police itself would not infringe the fundamental rights of a citizen. Such surveillance and watch which is not authorised by law may be unconstitutional. Such surveillance and watch even if it is authorised by law but if it is not in accordance with that law would equally be unconstitutional.” emphasis supplied) 11.2. In Sunkara Satyanarayana it is held: “23. Surveillance by the police makes very serious inroads into the life of a person. It even grossly violates the right of persons to privacy. Obtrusive surveillance does not leave a citizen alone. With the subtle methods of telephone tapping telescope watching remote controlled audio and video recording gadgets a citizen subjected to surveillance can never have mental peace and thus his life and liberty at every movement would be restricted. A person with lot of restrictions cannot be expected to lead a dignified life and exercise his right to liberty and other freedoms. A citizen s life would become miserable. Such a situation is worse than animal existence For these reasons can it be said that there is a right against surveillance …. PNR J WP No.18726 2020 30 Before examining the case law as decided by this Court it is apposite to note the intention and objectives behind such provisions dealing with surveillance. There cannot be two opinions that police should vigorously enforce the law. It does not however mean that they should rigorously violate the constitutional values and constitutional rights. In enforcing the law they shall not violate the Supreme law of the Nation. The police are charged with responsibility of controlling crime. Control of crime necessarily involve prevention of crime. To prevent crime it is permissible that police should keep a person known to be habitual offender or 7 known to be trouble maker under a watch. What is most objectionable to civilized mind is the use of extra legal methods by the police for prevention of crimes. Surveillance of a person in an arbitrary and unreasonable manner and contrary to the provisions of law is one such extra legal method which cannot be countenanced by Constitutional Court. 31. Illegal surveillance makes arbitrary and obtrusive intrusions into one s right to privacy and violates Article 21 of Constitution of India. But keeping a person under unobtrusive watch to prevent crime and to maintain law and order as authorised by law is reasonable restriction permissible under the Constitution.” emphasis supplied) 11.3. In paragraph 49 of Sunkara Satyanarayana learned single Judge culled out principles on police surveillance against history rowdy sheeters. To the extent relevant it reads as under: “49. Therefore in the context of police surveillance against history sheeters and rowdy sheeters the following principles vis a vis right to privacy under Article 21 of the Constitution would emerge: If the surveillance is not obtrusive the same does not violate the right to privacy under Article 21 of the Constitution of India. The same does not either in material or palpable form affect the right of the suspect to move freely nor can it be held to deprive the history sheeter rowdy sheeter of his personal liberty. PNR J WP No.18726 2020 In testing whether fundamental right of free movement or personal liberty is infringed or not it is to be remembered that infringement should be direct as well as tangible. If surveillance hurts personal sensitivities the same is not a violation for the constitution makers never intended to protect mere personal sensitiveness. … If the action of the police is found to infringe the freedoms guaranteed to the history sheeter rowdy sheeter and violates his right to privacy in that the surveillance is excessively obtrusive and intrusive it may seriously encroach on the privacy of a citizen as to infringe the fundamental right to privacy and personal liberty under Article 21 as well as the freedom of movement guaranteed under Article 19(1)(d) of the Constitution of India and the same is impermissible. In either case whether the regulation is statutory or non statutory domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and there can be no routine follow up at the end of a conviction or release from prison in every case.” In the case on hand a rowdy sheet was opened against the petitioner and the same is not under challenge. Learned counsel for petitioner also fairly submits that he has no objection if Police keep a watch on his movements during the day but cannot disturb his privacy and cannot disturb him in late night hours. There is merit in the submission of the learned counsel for petitioner that only on the ground that rowdy sheet is opened Police cannot visit the residence of the petitioner in the late night hours and disturb him. It does amount to intruding into privacy offending the right of the person. It is not the case of the respondent Police that petitioner continues to involve in criminal PNR J WP No.18726 2020 activities which can be assumed to be resulting in possible law and order problem in the society and such late night incursion was necessary in the larger public interest. Therefore the action of the Police in visiting the house of the petitioner in the late night hours is not valid. In the facts of this case therefore the respondents are directed to confine the surveillance on the petitioner to the barest minimum and if warranted visiting the residence of the petitioner shall be only during the course of the day and such surveillance should not be excessively obtrusive and intrusive and shall not disturb the petitioner during late night hours. If petitioner is required in the investigation enquiry they shall follow due procedure required by law. 14. Accordingly the writ petition is disposed of. Pending miscellaneous petitions if any pending shall stand closed. JUSTICE P.NAVEEN RAO DATE: 19 01 2021 PNR J WP No.18726 2020 HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 187220 Date : 19.1.2021

Disparaging remarks against the conduct of a person is inconsistent with judicial behaviour: Supreme Court of India

Use of intemperate language or making disparaging remarks against anyone, unless that be the requirement for deciding the case, is inconsistent with judicial behaviors. Written words in judicial orders are for permanent record which make it even more necessary to practice self-restraint in exercise of judicial power while making written orders. This was held by Hon’ble Justice Rohinton Fali Nariman and Hon’ble Justice Hrishikesh Roy in the case of Neeraj Garg Vs. Sarita Rani and Ors. Etc. [CIVIL APPEAL NOs.4555 ­ 4559 OF 2021] on the 02nd of august, 2021 before the Hon’ble Supreme Court at New Delhi. The brief facts of the case are, the appellant is a practicing lawyer, before the High Court of Uttarakhand with around 17 years standing as member of the Bar. The present appeal is limited to expunging certain observations made against the appellant by the learned Judge of the High Court while deciding four cases in which the appellant was representing one of the contesting parties. The Office Report in the case reflects that the Counsel for the Appellant has circulated a letter dated 13.07.2021 stating therein that the Petition has been filed only for expunging certain observations recorded against the Appellant by the High Court in the concerned cases and the Appellant is not seeking any relief against any of the arrayed Respondents and as such they be treated as Proforma Respondents. the remarks/observations made by the learned Judge against the Appellant were recorded without putting the counsel to notice or providing any hearing to him, before recording the adverse comments. those recordings are neither essential nor necessary for the Court’s verdict in the concerned cases. The counsel for the appellant submitted that, the comments in the judicial orders of the High Court against the Counsel’s conduct were not needed for adjudication of the matters under consideration. In any case, the observations could not have been recorded without putting the counsel on notice about the intention of the Court. It is also submitted that by virtue of the remarks recorded against the Appellant, his hard­ earned reputation has been tarnished. It was also submitted that since the presiding judge and the appellant were rival counsels on several occasions, the comments may have emanated from personal prejudice and may not be otherwise warranted. Accordingly, it is argued that the Appellant should not be made to suffer adverse comments on his conduct as a lawyer only because the concerned Judge may not appreciate the efforts made. The court heard the submissions of both the parties and observed that even in cases of justified criticism, the language employed must be of utmost restraint. The use of carping language to disapprove of the conduct of the Counsel would not be an act of sobriety, moderation or restraint. The court also relied on the judgement in the case of A.M. Mathur Vs. Pramod Kumar Gupta (1990) 2 SCC 533, wherein it was held that, “The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might be better called judicial respect, that is respect by the judiciary…”.

1. Leave granted. The appellant is a practicing lawyer before the High Bar. The present appeal is limited to expunging certain observations 2017 titled Vira Wali Manga Vs. Sarita Rani S.A No.190 2019 titled Landour Community Hospital Vs Sandeep Bishnoi. S.A. No. 182 of 2019 titled Vinod Kumar Vs. Mandir Laxmi W.P. No. 519 of 2019 the case reflects that the Counsel for the Appellant has circulated a by the High Court in the concerned cases and the Appellant is not 3. Representing the appellant Mr. Mukul Rohatgi the learned Senior Counsel submits that the appellant is regularly practicing in the submits that the remarks observations made by the learned Judge against the Appellant were recorded without putting the counsel to notice or providing any hearing to him before recording the adverse comments. It is also submitted that those recordings are neither According to Mr. Rohatgi such adverse comments will not only 4. The learned amicus curiae Mr. Amar Dave together with the learned Senior Counsel Mr. Mukul Rohatgi have drawn specific attention of this Court to the following remarks in the High Court’s I express my deep anguish and hesitantly refraining myself from taking any action against the counsel for the petitioner for producing only part of document and placing reliance on the same for procuring an interim order by suppressing material 17. The counsel for the petitioner is a seasonal advocate he owes a responsibility towards the institution and fraternity too he had deliberately 5. Similarly in the second case i.e. S.A. No.190 2019 the learned too be addressed for quite some time this Court is of litigants whose matters were pending consideration that as if it was not an argument for the case but In the third judgement i.e. S.A. 1819 dated 12.03.2020 the the present Second Appeal before this Court the Goel v. Sri Sushi Chandra Sabbarwal & Another since I had appeared as a counsel on behalf of the In the fourth case W.P.(M S) 5119 the Court on 22.02.2021 2. Though this Court should have avoided to make this remark but owning to the deliberate and intentional modus operandi which is normally adopted which has now become a regular feature almost in most of the cases which are filed by the learned counsel for the petitioner this Court is constraint to make certain observations which has Counsel basically intended so as to mislead the Court or to avoid an adjudication of the case on stage itself by putting uncalled for documents which are not even relevant including the copy of the citation judgments on which he wants to rely as part of the records of the Writ Petition making the records of the Writ Petition running into several volumes and that too in a writ jurisdiction under Article 227 of the Constitution of India which is a tactics which has been adopted by the learned counsel for the petitioner by placing voluminous records in the Writ Petition including the copies of precedent judgments on which the reliance has which in the instant case happens to be about 20 judgments which the petitioner s counsel contends to rely on in support of his case as against the proceedings which were held under Section 21(1)(a recorded hereinafter it could be apparently inferred that even most of the judgments on which reliance 4. This attitude adopted cannot be ruled out to be a professional and a strategic device which is being admission of writ due to paucity of time would be constraint to admit even the Writ Petitions which are arising from concurrent judgments in a summary being taxing on the litigant also to meet the not an isolated example but rather it is a regular feature which had been adopted by the Counsel as a routine in most of the cases which are being instituted from his Chamber. This methodology is judgment is put to challenge before a superior platform he may have his argument protected that the judgment relied by him and which were on record before the Court were not considered by the Court and thus the judgment is a consequence of 2 3 and 4 of the judgment the modus operandi of the present case and this Court has already consciously observed that the intention behind making reference to the judgement was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent Writ Petitions in limine by placing voluminous judgements on records and 8. The Appellant contends that the above referred comments in the the observations could not have been recorded without putting the earned reputation has been tarnished. To project that such remarks were unmerited Mr. Rohatgi points out that the Appellant with an otherwise unblemished professional record had no occasion to suffer the concerned Presiding Judge before his elevation on 19.05.2017 to were rival counsel in several contested matters Mr. Rohatgi submits that the comments may have emanated from personal prejudice and may not be otherwise warranted. Accordingly it is argued that the Appellant should not be made to suffer adverse comments on his conduct as a lawyer only because the concerned Judge may not counsel are unmerited and do not meet the required parameters the a) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending b) Whether there is evidence on record bearing on that 10. In Alok Kumar Roy Vs. Dr. S.N. Sarma2 in the opinion written by Justice C.K.Wanchoo for a Five Judges Bench this Court had emphasized that even in cases of justified criticism the language disapprove of the conduct of the Counsel would not be an act of 1 AIR 1964 SC 703 21 SCR 813 11.The judgement of this Court in A.M. Mathur Vs. Pramod Kumar Gupta3 delivered by Justice K Jagannatha Shetty elaborates on the need to avoid even the appearance of bitterness. The Court observed should be constant theme of our judges. This judges to command respect as to protect the per established norms of judicial propriety has also been succinctly “Use of intemperate language or making the requirement for deciding the case is in judicial orders are for permanent record which make it even more necessary to practice self­ 32 SCC 533 4 1995 SuppSCC 169 The principles laid down as above have been quoted with Another5. In this case Justice C.K. Thakker writing for the Court of the Four Judges Bench in Mohammed Naimon recording of adverse remarks has been approved in a catena of decisions since 1964. It was also cited by the Supreme Court of Sri Lanka in A.N that the judge’s comments against the petitioner in that case were While it is of fundamental importance in the realm of important for the judges to be exercising restraint and avoid 56 SCC 767 6 1982 SCC SL SC 20 were unnecessary for deciding the disputes. Moreover they appear to be based on the personal perception of the learned Judge. It is also comments give any opportunity to the Appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the appellant. Such condemnation of the 17. The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments it will be a cross that the Appellant will have to bear all his life. To allow him to suffer thus the offending remarks recorded by the learned judge against the The appellant whose professional conduct was questioned was not paragraphs 4 5 6 and 7 of this judgement. The appeals are accordingly

It is the duty of the Court to find out whether any material has been taken mala fide against the petitioner for purpose of termination: Tripura High Court

The competent authority was at liberty to take a decision on the retention of the petitioner in the service. Such an opinion was made by The Hon’ble High Court of Tripura through the bench led by The Hon’ble Mr. Justice S. Talapatra in the matter of Debjani Deb Sarkar Vs. The State of Tripura and Ors. [WP(C) No. 102 of 2021].  The facts of the case were associated with the petitioner who was working under State Health and Family Welfare Society, Tripura as a Computer Assistant on a contractual basis. The petitioner was appointed for 11 months at the beginning and such was renewed from time to time and such was repeated again through a memorandum to continue the work. The petitioner’s service was terminated before the completion of the tenure mentioned in the said impugned memorandum. Thereby, the said termination was challenged. The counsel representing the petitioner stated that if the veil was lifted from the facts that resulted in the issuance of the said impugned memorandum then it would be clear that the petitioner was transferred by an order dated 15.01.2019.  It appeared that failed to join the new place of transfer and continued her work from the previously posted place and according to the petitioner, she was directed to do so. A showcase was issued by the Mission Director NHM, Government of Tripura wherein the petitioner was asked to reply in three days stating why disciplinary action should not be taken against her since she violated office to order. In reply, she had stated that she was orally told to work in the previous posting place.  After the reply was submitted, she was asked to transfer to the new place but upon joining the petitioner took four days of casual leave due to ‘family affairs’ but after the end of the leave, she did not join and again applied for a leave of about 1 month. The petitioner was not entitled to any further leave and was entitled to a casual leave of 12 days. Still, she was unauthorizedly absent from her work.  Considering all the facts, The Hon’ble Court stated that “Ms. Chakma (Saha), learned counsel has stated that the action of the respondent is not tainted by mala fide. Hence, this court does not find any infirmity in the order of termination. The said order of termination has been issued within the terms of the contract of engagement. No other premise subsists which may persuade this court to interfere with the order of termination. As consequence, this writ petition stands dismissed.”

HIGH COURT OF TRIPURA WP(C) No. 1021 Debjani Deb Sarkar wife of Amit Choudhury R.O: Village: Indranagar P.O: Indranagar P.S. NCC Dist: West Tripura PIN:799006 Petitioner(s) Versus 1. The State of Tripura To be represented by the Secretary Health Department Govt. of Tripura New Secretariat Building New Capital Complex Kunjaban P.S. New Capital Complex Agartala West Tripura PIN 799010 2. The Director of Health Services Govt. of Tripura Agartala West Tripura 3. The ChairmanDistrict Health & Family Welfare SocietyWest Tripura Agartala 4. The ChairmanDistrict Health & Family Welfare SocietySepahijala District Bishalgarh 5. The Mission Director National Rural Health Mission Govt. of Tripura Gurkhabasti Agartala 799006 Tripura Agaratala For PetitionerFor Respondent(s) Whether fit for reporting Respondent(s) Mr. S Bhattacharjee Advocate Ms. N ChakmaAdvocate NO HON’BLE MR. JUSTICE S. TALAPATRA Judgment & OrderHeard Mr. S Bhattacharjee learned counsel appearing for the petitioner as well as Ms. N Chakmalearned counsel appearing for the respondents. The petitioner who was serving as Computer Assistant on contractual basis for strengthening of Routine Immunization Programme under State Health and Family Welfare Society Tripura has challenged the memorandum dated 03.02.2021her service was continued along with others for the period from 01.04.2020 till In the said memorandum dated 01.04.2020 the following provision has been inserted: “Continuation of services under societies will henceforth be issued on the basis of Appraisal Report as decided by the authority for 1(one) year as per existing terms & But by the impugned memorandum before the said tenure has expired the petitioner‟s service has been terminated with effect from 03.03.2021. The memorandum containing the order of termination is under challenge in this writ petition. Mr. Bhattacharjee learned counsel appearing for the petitioner has contended that if the veil is lifted from the apparent facts which led to issuance of the said memorandum terminating the service of the petitioner it will be transparent that the petitioner was transferred by the order dated 15.01.2019 to the office of the Chief Medical Officer Sepahijala from her place of posting i.e. the office of the Chief Medical Officer West Tripura. It appears from the records that the petitioner did not join the new place of posting and she continued in her earlier place of posting and according to her she was directed to continue in the previous place of posting by the Head of Office and DDO of her earlier office. Be that as it may the Mission Director NHM Government of Tripura issued a show cause notice on 31.08.2020 asking the petitioner to reply within three days from the date of receipt of that notice why the appropriate disciplinary action should not be taken against her as she had violated the office order dated 15.01.2019. The petitioner filed the reply on 02.09.2020 by stating inter alia that she was verbally permitted to work in her previous place of posting and she had discharged her duties and responsibilities there. Further she has stated in para 3 of the said reply dated 02.09.2020 as “3. That sir if I worked in violation of the transfer order dated 15.01.2019 then it would be obvious that salary would not be released in my favour. But as I was working on the basis of the verbal direction and decision of the authority salary was also released by the Head of Office and DDO from which act it is implied that my transfer order was stayed if not cancelled.” Further it appears that after the said reply by the release order dated 04.09.2020 the petitioner was asked to join her new place of posting. Accordingly the petitioner had joined in her new place of posting on 07.09.2020. But the petitioner had taken four days‟ casual leave from 08.09.2020 to 11.09.2020 due to „family affairs‟ but after expiry of the period from 08.09.2020 to 11.09.2020 she did not resume her duties in the new place of posting but had applied for extension of leave from 14.09.2020 to 13.10.2020 as for sudden transfer her children were suffering from illness and if the petitioner continued to discharge her duties at her new place of posting it would not have been possible on her that to take due care of her children. In response to her letter addressed to the Chief Medical Officer Sepahijala district for special leave for 30 days Annexure 29 to the writ petition) the Chief Medical Officer who was occupying the position of the Chairman Executive Committee District Health and Family Welfare Society sanctioned eleven days casual leave. The petitioner was not entitled to further leave as per the terms and condition of the engagement. The petitioner is only entitled to get casual leave for a period of twelve days and the petitioner is was not entitled to any other leave. In that turn of events on 09.10.2020 the petitioner made an application for her transfer to the Mission Director by detailing the mitigating circumstances with which she was confronted On 27.10.2020 the petitioner was asked by the memorandum to reply why she was absent from the duties unauthorizedly w.e.f. 04.10.2020. In response to that as it appears the petitioner filed an application to the Chief Medical Officer Sepahijala district on 28.10.2020 stating that she had filed an application for leave for thirty days on medical grounds w.e.f 23.09.2020 to 22.10.2020 and she had applied for more leave for her own illness w.e.f. 23.10.2020 to Even after receipt of the communication from the competent authority that the petitioner is not entitled to any further leave in the form of a reply to the memorandum dated 27.10.2020 the petitioner on 16.11.2020had stated that “she had come to know her medical leave was sanctioned only for eleven days i.e. up to 03.10.2020 and there had been no leave pending.” The petitioner had seriously pressed again to grant her the leave as applied. Again the petitioner filed an application to the Principal Secretary Department of Health Government of Tripura on 09.11.2020 seeking her transfer and posting in the Office of the Chief Medical Officer West Tripura district so that she can perform better. Thereafter by the memorandum dated 03.02.2021 the petitioner has been terminated giving one month‟s notice and making the termination order to be effective from 03.03.2021. The relevant part of the said memorandum dated 03.20.2021 is reproduced hereunder for reference: “As per the last en mass continuation of contractual staff working under NHM Tripura vide Memorandum No.F.3(5 3782) FWPM SHFWS 2019 09 42 dated 1st April 2020 31 03 2021 along with all other staffs of SHFWS. Now the appropriate authority has decided to terminate discontinue her service from NHM Tripura after 03 03 2021. As per terms of the is purely contractual and liable to be terminated at any i.e. the time without any reason thereof with 1(one) month notice or 1(one) month salary from either side‟ as per Colum 5 of the table below the Column 5 the effective date of termination has been provided of as 3rd March 2021.” Mr. Bhattacharjee learned counsel has submitted that those conducts have been considered behind the back of the petitioner and as such the termination order is not simplicitor one it is driven by the consideration mala fide and behind the back of the petitioner. Moreover Mr. Bhattacharjee learned counsel has submitted that in the initial engagement letter there was no clause of termination with one month‟s notice or one month‟s salary in advance. For repelling the said of submission of Mr. Bhattacharjee Ms. Chakmalearned counsel has at the outset pointed out that it is true that in the memorandum dated 27.02.2007 by which the petitioner was initially appointed there is no clause of termination but subsequently while the renewal was made by the order dated 11.01.2008 following clause was added as condition of engagement of the petitioner as contractual Computer “3. The offer of continuation is liable to be terminated at any time without assigning any reason thereof with one month‟s notice on either side.” The said clause had continued in all orders of renewal subsequently including the order dated 27.12.2008 Annexure 8 to the writ petition) the order dated 07.11.2009 Annexure 9 to the writ petition) the order dated 27.09.2010 Annexure 10 to the writ petition) the order dated 29.11.2011 the order dated 09.10.2012 the order dated 30.09.2013 the memorandum dated 23.02.2015the memorandum dated 13.05.2016 and finally by the memorandum dated 01.04.2020 the petitioner was engaged for further one year with effect from 02.04.2020 till 31.03.2020 and in the said memorandum it has been clearly stated that the existing terms and conditions will apply in respect of the said engagement. Ms. Chakma learned counsel has thus contended that the clause of termination had been quite inserted as term of engagement. Therefore the petitioner‟s plea that there is no such term in the engagement does not survive the test of scrutiny. Ms. Chakmalearned counsel has submitted that the documents which have been submitted by the petitioner in respect of her absence were on the record but those conducts of the petitioner have not been reflected as the ground of impugned memorandum terminating the service of the petitioner. But the respondent does not deny those records reflecting to the unacceptable absence of the petitioner. According to her the show cause notice was issued and it is apparent from the reply that cause are not satisfactory. Thus the allegation that the decisions were taken without the knowledge of the petitioner about her absence is completely unfounded. On the contrary the records reflect that the petitioner was given opportunities to explain her absence. Thus the allegation of mala fide shall fall flat. Having appreciated the submission of the learned counsel for the petitioner this court finds that no material has been taken into consideration against the petitioner which were not placed for the petitioner‟s response. Whether the petitioner was performing satisfactorily or not will be decided by the employer. This court yes may lift the veil to find out whether any material has been taken mala fide against the petitioner for purpose of termination. It may be stated here that lifting the veil is not the end of the matter. Only after lifting of the veil if it is seen that some materials were considered by the employer which were not made known to the terminated employee or no opportunity was afforded to him her for response and the employer was prompted by those to terminate the petitioner in such circumstances the court may interfere. But in the present case the materials those are apparently utilized for assessment have been made known to the petitioner and placed for response. As such the competent authority was at liberty to take a decision on retention of the petitioner in the service. Ms. Chakma learned counsel has stated that the action of the respondent is not tainted by mala fide. Hence this court does not find any infirmity in the order of termination. The said order of termination has been issued within the terms of the contract of engagement. No other premise subsists which may persuade this court to interfere with the order of termination. As consequence this writ petition stands dismissed. There shall be no order as to costs. JUDGE satabdi

Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide: Orissa High Court

The purpose of judicial review is to avoid arbitrariness, irrationality, lack of logic, prejudice and mala fide. The aim is to verify if choices or decisions have been made “legally” and not to evaluate if choices or decisions are sound. If the authority of judicial control is used on bids or contract awards, specific characteristics should be taken into consideration. The judgment was passed by The High Court of Orissa in the case of M/s. Ashirbad Industries & Others Vs the State of Odisha and Ors. [W.P.(C) No. 2850 OF 2021] by Single Bench consisting of Hon’ble Shri Justice. B.P. Routray. Three petitioners have jointly filed the present writ petition challenging the cancellation of the Tender Call Notice invited through e-Tender by the Executive Engineer to execute the Hydro-Mechanical Gate works under different Civil Divisions. Learned Counsel for the Petitioners contends that when the writ petitions filed by the Petitioners praying for finalizing the tender are pending adjudication, the order of cancellation passed by the Executive Engineer under Annexure-1 is erroneous and hit by the principles of lis pendens. His further contention is that, when the Petitioners have been selected as successful bidders, the unilateral action of the Opposite Parties in cancelling the tender without giving any opportunities of hearing to the Petitioners is illegal, arbitrary and not sustainable in the eye of law. The Learned Counsel submits that mere acceptance of the bid of the Petitioners by the Executive Engineer without the approval of the higher authorities, i.e., the Superintending Engineer and Chief Engineer does not create any right in their favour for the execution of the work. He further submits that as per the Tender Call Notice, the authority reserves the right to reject any order or all of the bids even without assigning any reason. He continues to submit that upon re-verification of the bids at the level of Superintending Engineer and Chief Engineer since the error was noticed in the evaluation of bids, the same needs to be rectified by making a conscious decision in cancelling the tender process and thus no illegality is involved in the same. Further, since no agreement has been executed with the Petitioners, no right of the Petitioners can be said to have been violated by such cancellation. The court while further, clearing the contention of the petitioner noted that “the doctrine of lis pendens as envisaged in Section 52 of the Transfer of Property Act, denotes the operation of common-law maxim pendent lite nihil innovetur. It is based on equity, good conscience and justice because it will be impossible to bring an action or suit to a successful termination if changes are permitted to prevail.”

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo. 2850 OF 2021 An application under Articles 226 & 227 of the Constitution of M s. Ashirbad Industries & others State of Odisha & Others Opposite Parties Advocate(s) appeared in this case: For Petitioners Mr. U.C. Mohanty Advocate. For Opposite Parties Mr. S. Palit Additional Government Advocate. CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY B.P. Routray J. 1. Three petitioners viz. M s.Ashirbad Industries M s.Poojarini Enterprisers and M s.Bhagabati Industries have jointly filed the present writ petition challenging the cancellation of Tender Call Notice No.1W 2020 21 invited through e Tender by the Executive Engineer Mechanical Division Bhubaneswar to execute the Hydro Mechanical Gate works under different Civil Divisions. W.P.(C)No.28521 2. The Petitioners state that they all are registered small scale industrial units and in pursuance to Tender Call Notice No.1W 2020 21 they participated in the tender process for Fabrication Supply Transportation and Erection of hydro mechanical gate works under Opposite Party No.5 i.e. the Executive Engineer Mechanical Division Bhubaneswar. The tender was available from 21st May 2020 to 30th May 2020 through e Tender with stipulation for opening of the technical bid on 1st June 2020. The Petitioners are the successful L 1 bidders for 24 nos. of works as per the tender notice. On 10th June 2020 Opposite Party No.5 recommended the case of the Petitioners for the work to the Superintending Engineer Opposite Party No.4) and thereafter the Superintending Engineer further recommended the same to the Chief EngineerNo.17602 2020 W.P.(C) No.17593 2020 and W.P.(C) No.17594 2020 individually which were disposed of by this Court with direction to Opposite Party No.5 to consider and dispose of the representation of the Petitioners by passing a reasoned and speaking order after affording reasonable opportunities of hearing to the Petitioners. Since the direction of this Court has not complied in time CONTC No.3706 2020 CONTC No.3702 2020 and CONTC No.3707 2020 have been preferred by the Petitioners. 3. In the meantime the Superintending Engineer and the Chief Engineer in their orders dated 10th September 2020and 15th September 2020intimated Opposite Party No.5 for rejection of the tender as the tender documents are found defective and the discrepancies regarding “Structure and W.P.(C)No.28521 Organization” “Plant and Equipment” and “Performance record” are noticed during re scrutinization. 4. Getting information of such letters of the Superintending Engineer and the Chief Engineer the Petitioners filed three writ petitions in W.P.(C) No.29174 2020 W.P.(C) No.29192 2020 and W.P.(C) No.29194 2020 individually challenging such instructions of the Superintending Engineer and the Chief Engineer as well as for a direction to Opposite Party No.5 to finalize the tender process in favour of the Petitioners. In W.P.(C) No.29174 2020 Opposite Party No.5 filed his counter stating that submission of details about “Structure and Organization” “List of Plant and Equipment” and “Performance record” are mandatory requirements as per Form B Form E and Annexure A of the Tender Call Notice and non submission of the same were noticed after re verification of the bids. 5. While the matter stood as thus the order under Annexure 1 cancelling the tender was issued by the Opposite Party No.5 Executive Engineer. 6. Mr. U.C. Mohanty learned counsel for the Petitioners contends that when the writ petitions filed by the Petitioners in W.P.(C) No.29174 2020 W.P.(C) and W.P.(C) No.29194 2020 praying for finalizing the tender are pending adjudication the order of cancellation passed by the Executive Engineer under Annexure 1 is erroneous and hit by the principles of lis pendens. His further contention is that when the Petitioners have been selected as successful bidders the unilateral action of the Opposite Parties in cancelling the tender without giving any W.P.(C)No.28521 opportunity of hearing to the Petitioners is illegal arbitrary and not sustainable in the eye of law. To substantiate his contention he cites two decisions of this Court in the case of Homogenomics Private Ltd. vs. State of Odisha and others reported in 2017(I) ILR CUT 31 and Sampad Samal vs. State of Odisha and others reported in 2017ILR CUT 262. 7. On the contrary Mr. Palit learned Additional Government Advocate for the State Opposite Parties submits that mere acceptance of the bid of the Petitioners by the Executive Engineer without approval of the higher authorities i.e. the Superintending Engineer and Chief Engineer does not create any right in their favour for execution of the work. He further submits that as per the Tender Call Notice the authority reserves the right to reject any order or all of the bids even without assigning any reason. Mr. Palit continues to submit that upon re verification of the bids at the level of Superintending Engineer and Chief Engineer since error was noticed in evaluation of bids the same needs to be rectified by taking a conscious decision in cancelling the tender process and thus no illegality is involved in the same. Further since no agreement has been executed with the Petitioners no right of the Petitioners can be said to have been violated by such cancellation. 8. Undoubtedly the selection of the Petitioners as L 1 bidders for 24 nos. of works as per the Tender Call Notice by the Executive Engineer has not been questioned by the Opposite Parties. But during re verification of the bid documents by the Opposite Party Nos.3 and 4 some defects and discrepancies were noticed resulting cancellation of the tender process. It is not the case of the parties that the tender W.P.(C)No.28521 was cancelled in order to grant the work in favour of any other person. It is also not the case of the parties that the tender was cancelled without any reason. What is to be seen is whether such cancellation of the tender violates any right accrued in favour of the Petitioners or such cancellation of the tender is so unreasonable or illegal that will not stand the test of law. 9. In the case of Jagdish Mandal vs. State of Orissa and others reported in14 SCC 517 the Hon’ble Supreme Court considering the scope of the Court to interfere in tender and contractual matters in exercise of powers of judicial review has held as follows: to prevent arbitrariness is a commercial “22. Judicial review of administrative action irrationality unreasonableness bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be borne in mind. A contract tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest courts will not in exercise of power of if a procedural interfere even aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances wounded pride and business rivalry to make mountains out of molehills of some review W.P.(C)No.28521 technical procedural violation or some prejudice to self and persuade courts to interfere by exercising power of judicial review should be resisted. Such interferences either interim or final may hold up public works for years or delay relief and succor to thousands and millions and may increase the project cost manifold. Therefore a court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” ii)Whether public interest is affected. If the answers are in the negative there should be no interference under Article 226. Cases blacklisting or imposition of penal consequences on a tenderer contractor or distribution of State largesse allotment of sites shops grant of licences dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 10. In the case of Homogenomics Private Ltd. relied on by the Petitioners the facts are quite different as in the said case the technical bid of the Petitioner in that case was rejected being disqualified and during pendency of the case Opposite Party No.3 was selected and issued with work order. This Court has observed W.P.(C)No.28521 On the basis of the admitted facts when the Opposite Party No.3 had no valid DCGI certificate at the time of opening of technical bid and price bid this Court is of the considered view that the contention raised that subsequent renewal made cannot validate the invalid contract. Thereby Opposite Party No.2 has acted in excess of its jurisdiction.” 11. Similarly in the case of Sampad Samalthe cancellation of the tender granted in favour of the Petitioner therein was on a mere technical ground i.e. for lapse of 90 days. However this Court held as follows: in clause 17 of “14. Applying the aforesaid well settled principles to the present context and taking into consideration the conditions stipulated document read with clause 10 of the terms and conditions of the tender paper and giving them their plain meaning as the authority concerned has passed the impugned order of cancellation without any proper and adequate ground rather as it is clear in an arbitrary manner because of pendency of frivolous petition the same cannot be sustained in the eye of 12. Therefore both the above cases as cited by the Petitioners do not lend any help to the Petitioners being distinguishable on facts. 13. Coming to examine the other contention of the Petitioners the doctrine of lis pendens as envisaged in Section 52 of the Transfer of Property Act denotes the operation of common law maxim pendent lite nihil innovetur. It is based on equity good conscience and justice because it will be impossible to bring an action or suit to a successful termination if changes are permitted to prevail. W.P.(C)No.28521 14. In the present case the facts are clear that the tender process was not finalized and no agreement of execution of work has been issued. The bid documents offered by the Petitioners has been accepted at the level of Executive Engineer which is subject to further approval by the Superintending Engineer and Chief Engineer and while undergoing such stage of approval at the higher level due to revelation of defects and discrepancies the tender was cancelled. Therefore there was no creation of right accrued in favour of the Petitioners to execute the work for which the Tender Call Notice was issued. Since no such right can be construed which can be said to have accrued in favour of the Petitioners the cancellation of the tender process in entirety in no way affects the Petitioners and thus nothing can be said to have changed by such cancellation. Since by mere acceptance of the bid documents on the part of the Executive Engineer would not create any right in favour of the Petitioners the cancellation of the tender also cannot be said to have attracted the doctrine of lis pendens. 15. The reasons as assigned by the Opposite Party Nos.3 and 4 in Annexures 6 and 7 regarding defects and discrepancies in the bid papers which is regarding non submission of the mandatory requirements as per the Tender Call Notice cannot be said as illegal or arbitrary by any stretch. The higher authorities have rectified the errors noticed in the evaluation process resulting cancellation of the tender. Since no other intention or mala fide purpose is found from the action of the Opposite Parties in cancelling the tender we do not find any merit in the submission of the Petitioners to interfere in the action of the Opposite Parties in cancelling the tender. W.P.(C)No.28521 16. In view of the discussions made above no merit is found to warrant interference in the action of the Opposite Parties in cancelling of the e Tender under Annexure 1 and as such we do not incline to interfere with the same. 17. Accordingly the writ petition is dismissed. There shall be no order as to costs. B.P. Routray Dr. S. Muralidhar Chief Justice 18th February 2021. B.K. Barik Secretary W.P.(C)No.28521

WhatsApp Group Administrator is not vicariously liable for member’s offensive messages unless common intention is displayed: Bombay High Court

The administrator of a WhatsApp group shall not be held liable for the messages and posts put up by the members of the group in the group chat despite it being objectionable and offensive. A division bench of Justice Z.A. Haq and Justice Amit. B. Borkar while adjudicating the matter in Kishore v. State of Maharashtra & Anr [CRIMINAL APPLICATION (APL) NO. 573 OF 2016] dealt with the criminal liability of a WhatsApp group administrator and whether his action or inaction against offensive messages may be considered as a form of abetment or not. An FIR report was registered against an accused who was the WhatsApp group administrator of a group chat, on the ground that one of the members of the group made filthy sexually coloured remarks against the complainant and no action such as removing the member from the group had been taken by the accused against the member. Upon receiving the FIR, the investigating agency initiated the investigation and recorded statements of various witnesses. After winding up the investigation, the agency seized the mobile phones of the accused as well as the member who posted the offensive message. The Court, in deciding the liability of the accused took into consideration various factors involving the instant messaging platform WhatsApp. It expressed that the group administrator is an individual who creates and maintains the group by adding or deleting members and he has limited power in controlling the functioning of what members post in the group. He cannot regulate, moderate or censor the content that is posted on the group. Due to the absence of a specific penal provision, vicarious liability cannot be imposed on the administrator of a WhatsApp group. Further, he cannot be expected to presume or have advance knowledge of criminal acts of members of the group. On the issue of abetment, Court held that upon considering the material and looking into the results of the investigation, there were no facts that could substantially prove that the accused was conspicuously involved in making those sexually coloured comments.

on 22 04 2021 on 23 04 1 13APL 573.16NO. 573 OF 2016APPLICANT : Kishor S o Chintaman Tarone Agedabout 33 years R o Sawar Tola TahsilArjuni Morgaon District Gondia. ...VERSUS...NON APPLICANTS : 1.The State of Maharashtra ThroughP.S.O. P. S. Arjuni Morgaon District Gondia.2.Mrs.Rachanatai W o ChameshwarjiGahane Aged about 41 years R o Siregaon Bandh Post Sangadi TahsilArjuni Morgaon District Gondia. Mr.R.M.Daga Advocate for the applicant.Mr.T.A.Mirza A.P. P. for the non applicant No.1.Mr. Sanjay A. Bramhe Advocate for the non applicant No.2. CORAM : Z.A.HAQ AND AMIT B. BORKAR JJ. DATED : 01.03.2021.ORAL JUDGMENT :509 and 107 of theIndian Penal Code and section 67 of the Information Technology Act 2000 and also proceedings bearing Regular Criminal Case No.177 of2016. 4. The First Information Report came to be registered againstthe applicant and another with the accusations that the applicant(Accused No. 2) is an administrator of a Whatsapp group that accusedNo.1 used filthy language against the non applicant No.2 on theWhatsapp group of which applicant is an administrator that despiteaccused No.1 using filthy language against the non applicant No.2 theapplicant had not taken any action against the accused No.1. It isalleged that the applicant being administrator had not removed nordeleted accused No.1 from the Whatsapp group. It is further allegedthat the applicant had not asked accused No.1 to submit apology to thenon applicant No.2 on the contrary the applicant expressed hishelplessness. The non applicant No.2 therefore lodged FirstKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 3 13APL 573.16509 and 107 of the Indian Penal Code and section 67 of theInformation Technology Act 2000. To adjudicate the said issue it isnecessary to understand functioning of Whatsapp messaging service.Whatsapp is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is afeature on Whatsapp which allows joint participation of members of thechat group. Group Administrators as they are generally called are theones who create the group by adding or deleting the members to thesame. Every chat group has one or more group administrators whocontrol participation of members of the group by deleting or addingmembers of the group. A group administrator has limited power ofremoving a member of the group or adding other members of thegroup. Once the group is created the functioning of the administratorand that of the members is at par with each other except the power ofadding or deleting members to the group. The Administrator of aKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 5 13APL 573.16of the Indian Penal Code to understand what are the criteria forconstitution of the offence alleged against the applicant which reads asunder:KHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 6 13APL 573.16A man committing any of thefollowing acts—(i) physical contact and advances involvingunwelcome and explicit sexual overtures or(ii) a demand or request for sexual favours or(iii) showing pornography against the will of awoman or(iv) making sexually coloured remarks shall beguilty of the offence of sexual harassment.(2) ..(3) Any man who commits the offence specified in clause(iv) of sub sectionshall be punished withimprisonment of either description for a term which mayextend to one year or with fine or with both.]”Clauseof sub section of section 354 A of the IndianPenal Code requires that a man should himself make sexually colouredremarks. The language of section 354 A(1)(iv) of the Indian Penal Codedoes not introduce vicarious liability nor could it be said that theLegislature intended to introduce vicarious liability by necessaryimplication. The First Information Report nowhere alleges that theapplicant made sexually coloured remarks against the non applicantNo.2. It is alleged in the First Information Report that the sexuallycoloured remarks were made by accused No.1 and the applicant beingAdministrator of the Whatsapp group had not taken action of deletingthe accused No.1 from the group nor had sought apology from theaccused No.1. In our opinion in the facts of present case non removalKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 7 13APL 573.16of the Indian Penal Code arenot fulfilled.10. The next offence alleged against the applicant is undersection 107 of the Indian Penal Code. To appreciate the criminal liabilityof an administrator of a Whatsapp group it is necessary to understandthe concept of abetment as enshrined in section 107 of the Indian PenalCode. Section 107 of the Indian Penal Code reads as follows:“107. Abetment of a thing.— A person abets the doing of athing who—First Instigates any person to do that thing orSecondly. Engages with one or more other person orpersons in any conspiracy for the doing of that thing if anact or illegal omission takes place in pursuance of thatconspiracy and in order to the doing of that thing orThirdly. Intentionally aids by any act or illegalomission the doing of that thing.Explanation 1. —A person who by willfulmisrepresentation or by willful concealment of a materialfact which he is bound to disclose voluntarily causes orKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 8 13APL 573.1610 SCC 797 by the Hon’ble Apex Courtwhich in para 6 has held thus “6. Section 107 IPC defines abetment of a thing. Theoffence of abetment is a separate and distinct offenceprovided in IPC. A person abets the doing of a thing when(l) he instigates any person to do that thing orengageswith one or more other persons in any conspiracy for thedoing of that thing orintentionally aids by act orillegal omission the doing of that thing. These things areessential to complete abetment as a crime. The word“instigate” literally means to provoke incite urge on orbring about by persuasion to do anything. The abetmentmay be by instigation conspiracy or intentional aid asprovided in the three clauses of Section 107. Section 109provides that if the act abetted is committed inconsequence of abetment and there is no provision for thepunishment of such abetment then the offender is to bepunished with the punishment provided for the originaloffence. “Abetted” in Section 109 means the specific offenceabetted. Therefore the offence for the abetment of which aKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 9 13APL 573.16when the grievance of the non applicant No.2is that it is the accused No.1 who had used filthy language against thenon applicant No.2. We are therefore satisfied that the allegations inthe First Information Report and material brought on record in the formof charge sheet do not disclose essential ingredients of offencepunishable under section 509 of the Indian Penal Code. 12.The next offence alleged against the applicant is undersection 67 of the Information Technology Act 2000 which reads asunder:“67. Punishment for publishing or transmittingobscene material in electronic form. Whoever publishes ortransmits or causes to be published or transmitted in theelectronic form any material which is lascivious or appeals to theprurient interest or if its effect is such as to tend to deprave andcorrupt persons who are likely having regard to all relevantcircumstances to read see or hear the matter contained orembodied in it shall be punished on first conviction withimprisonment of either description for a term which may extend tothree years and with fine which may extend to five lakh rupeesand in the event of second or subsequent conviction withimprisonment of either description for a term which may extend tofive years and also with fine which may extend to ten lakhrupees.”To constitute an offence under Section 67 of theInformation Technology Act 2000 a person must publish or transmit anobscene material in electronic form. Section 67 provides for punishmentKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 11 13APL 573.16of the Information Technology Act 2000 which reads asunder:“2. Definitions. In this Act unless thecontext otherwise requires "intermediary" with respect to any particular electronicrecords means any person who on behalf of another personreceives stores or transmits that record or provides any servicewith respect to that record and includes telecom serviceproviders network service providers internet service providers web hosting service providers search engines online paymentKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 12 13APL 573.16the power under Section 482 can be exercised by this Court where the allegations made in the FIR even if they are taken at theirface value and accepted in their entirety do not prima facie constituteany offence or make out a case against the accused. Taking an overallKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 13 13APL 573.16509 and 107 of the Indian Penal Code andsection 67 of the Information Technology Act 2000. We are thereforesatisfied that continuation of present proceedings against the applicantwould amount to abuse of process of Court. 14.We therefore pass the following order:i) The First Information Report No.316 andconsequent charge sheet bearing No. 216 for theoffences punishable under sections 354 A(1)(iv) 509 and107 of the Indian Penal Code and Section 67 of theInformation Technology Act 2000 and further proceedingsof Regular Criminal Case No.1716 pending on thefile of Judicial Magistrate First Class Arjuni Morgaon District Gondia are quashed and set aside. Rule is made absolute in the above terms. (AMIT B. BORKAR J)(Z.A.HAQ J)KHUNTEWWW.LIVELAW.IN

Mishandling and Abuse of Law and Order has a very grave adverse effect on the general atmosphere of the area where such lawlessness prevails: High Court Of Patna

The petitioners were alleged for freeing the accused from police custody by unfair means and false implications. It was an abusive and forcible attempt. The Court after considering all facts and circumstances dismissed the petition for pre-arrest bail. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Birbahadur Singh and others v. The State of Bihar[Criminal Miscellaneous No. 10934 of 2020].                      The facts of the case were that the petitioner was apprehended arrest in connection with a case instituted under Sections 341, 323, 353, 224, 225, 307, 504, and 506/34 of the Indian Penal Code. The learned counsel for the petitioner submitted that the 1st petitioner had surrendered before the court of law and took the bail and he might be got permitted to withdraw the current petition on his behalf. As prayed by the Learned Counsel the petition for petitioner no. 1 stood disposed of as withdrawn and other petitioners were restricted. It was alleged that the petitioners had manhandled the police personnel and freed the accused from custody.  Learned counsel for the petitioners submitted that the informant, who is the SHO of the Police Station was on inimical terms with the petitioner no. 2, as he had falsely implicated his son previously, showing recovery of mahua liquor from the Kirana shop of the son of the petitioner no. 2. It was submitted that due to this, petitioner no. 2 had filed an informatory petition for apprehending false implication by the present informant, and hence, the present case was instituted.  It was further submitted by the Additional Public Prosecutor that the witnesses had supported the prosecution case and that the petitioners had forcibly freed the accused. He submitted that the conduct of the petitioners is highhanded as the police who had gone to arrest of another accused were manhandled and abused and the said accused was set free, which has a very grave adverse effect on the the morale of the police and also the general atmosphere of the area where such lawlessness prevails. 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 is not inclined to grant pre-arrest bail to the petitioners no. 2 and 3, namely, Birendra Yadav and Guddu Yadav, respectively.” The petition was hence dismissed on the said terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish Learned counsel for the petitioners submitted that the informant, who is the SHO of the Police Station was on inimical terms with the petitioner no. 2, as he had falsely implicated his son previously, showing recovery of mahua liquor from the Kirana shop of the son of the petitioner no. 2. It was submitted that due to this, petitioner no. 2 had filed an informatory petition for apprehending false implication by the present informant, and hence, the present case was instituted.  It was further submitted by the Additional Public Prosecutor that the witnesses had supported the prosecution case and that the petitioners had forcibly freed the accused. He submitted that the conduct of the petitioners is highhanded as the police who had gone to arrest of another accused were manhandled and abused and the said accused was set free, which has a very grave adverse effect on the the morale of the police and also the general atmosphere of the area where such lawlessness prevails. 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 is not inclined to grant pre-arrest bail to the petitioners no. 2 and 3, namely, Birendra Yadav and Guddu Yadav, respectively.” The petition was hence dismissed on the said terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish It was further submitted by the Additional Public Prosecutor that the witnesses had supported the prosecution case and that the petitioners had forcibly freed the accused. He submitted that the conduct of the petitioners is highhanded as the police who had gone to arrest of another accused were manhandled and abused and the said accused was set free, which has a very grave adverse effect on the the morale of the police and also the general atmosphere of the area where such lawlessness prevails. 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 is not inclined to grant pre-arrest bail to the petitioners no. 2 and 3, namely, Birendra Yadav and Guddu Yadav, respectively.” The petition was hence dismissed on the said terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish 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 is not inclined to grant pre-arrest bail to the petitioners no. 2 and 3, namely, Birendra Yadav and Guddu Yadav, respectively.” The petition was hence dismissed on the said terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 109320 Arising Out of PS. Case No. 319 Year 2019 Thana NAWANAGAR District Buxar Birbahadur Singh aged about 20 years Male son of Birendra Yadav. Birendra Yadav aged about 38 years Male son of Late Bihari Yadav. Both are resident of village Kandsar PS NawanagarDistrict 3. Guddu Yadav aged about 20 years Male son of Suresh Singh resident of village Bhadi PS Murar District Buxar The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Dr. Kamal Deo Sharma Advocate Mr. Ajay Kumar Jha APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20 07 2021 The matter has been heard via video conferencing. 2. Heard Dr. Kamal Deo Sharma learned counsel for the petitioners and Mr. Ajay Kumar Jha learned Additional Public Prosecutorfor the State 3. The petitioners apprehend arrest in connection with Nawanagar PS Case No. 319 of 2019 dated 15.11.2019 instituted under Sections 341 323 353 224 225 307 504 and 506 34 of the Indian Penal Code. 4. Learned counsel for the petitioners submitted that petitioner no. 1 namely Birbahadur Singh has surrendered before the Court below and taken bail and thus he may be permitted to withdraw the present petition on behalf of him Patna High Court CR. MISC. No.109320 dt.20 07 2021 5. In view thereof as prayed for by learned counsel for the petitioners the petition on behalf of petitioner no. 1 namely Birbahadur Singh stands disposed off as withdrawn and is restricted to petitioners no. 2 and 3 namely Birendra Yadav and Guddu Yadav respectively 6. The allegation against the petitioners is that when police had gone to arrest Ashok Yadav and had taken him into custody they had manhandled the police personnel and had freed the said accused 7. Learned counsel for the petitioners submitted that the informant who is the SHO of the Police Station was on inimical terms with the petitioner no. 2 as he had falsely implicated his son previously showing recovery of mahua liquor from the Kirana shop of the son of the petitioner no. 2. It was submitted that due to this the petitioner no. 2 had filed informatory petition before the learned Chief Judicial Magistrate Buxar on 03.07.2019 apprehending false implication by the present informant and thereafter the present case has been instituted 8. Learned APP from the case diary submitted that the petitioners who were known and related to Ashok Yadav whom the police had gone to arrest had forcibly freed him from the custody of the police who were also manhandled and abused. It Patna High Court CR. MISC. No.109320 dt.20 07 2021 was further submitted that witnesses have supported the prosecution case. He submitted that the conduct of the petitioners is highhanded as the police who had gone to make an arrest of another accused were manhandled and abused and the said accused was set free which has a very grave adverse effect on the morale of the police and also the general atmosphere of the area where such lawlessness prevails. Further it was submitted that the filing of the informatory petition itself shows that the same has been done after seizure of liquor from the shop of the son of the petitioner no. 2 only to create pressure on the police in future 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners no. 2 and 3 namely Birendra Yadav and Guddu Yadav respectively 10. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J