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Non-application of Mind is a vital factor- Bombay High Court. | Detention of an individual without proper reasoning is illegal. The grounds of detention had been proved and decided according to establish itself justifiable for an individual. One such case which deals with it is the case of Pravin Ganpat Kakad v. The Commissioner of Police & Anr. [WRIT PETITION NO.336 OF 2021]. The facts of the case initiate when the petitioner challenges respondent No. 1 i.e. Commissioner of Police, Nashik City’s order of detention dated 21.08.2020, which was released under section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous People, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Vital Commodities Act. The applicant was served with the order of detention, the grounds of detention, and the relied-upon material. Learned counsel for the petitioner further submits that a perusal of the detention order demonstrated that there was non-application of mind because it was stated by respondent No.1 that prejudicial activities of the petitioner concerned six named areas and adjoining localities of Nashik city whereas there was no material to support such an assertion. On this basis, it was claimed that the detention order deserved to be set aside. In this regard, learned counsel for the petitioner relied upon Vijaya Ganesh Gajre Vs. Commissioner of Police, Pune & Ors., Criminal Writ Petition No.5052 of 2015. On the other hand, Mr. J. P. Yagnik, learned APP appearing on behalf of the respondents submitted that there was no substance in the contentions raised on behalf of the petitioner. Firstly, it was stated that the ground pertaining to alleged improper verification about the truthfulness of in-camera statements was not sustainable because there was no set format under which such verification was required to be recorded. It was submitted that in the present case the material on record sufficiently demonstrated that the in-camera statements had been verified by the concerned officer and that therefore it could not be said that such statements were not reliable or that respondent No.1 could not have considered such statements while issuing the detention order. The court in this case had held “As regards the second ground of challenge pertaining to the wrong translation of certain documents supplied along with the order of detention, it is necessary to peruse the documents that were allegedly wrongly translated. We found on a perusal of the documents that there appear to be errors in the translation of few words in a medical certificate and part of reply to a bail application concerning the petitioner. The basis for claiming that such wrong translation ought to be held to be fatal to a detention order, is that it interferes with the right of the detenue to make an effective representation. In the present case, we are unable to appreciate how error in translation of the aforesaid two documents adversely affected the right of the petitioner to make an effective representation. In the six aforesaid judgments on which the learned counsel has placed reliance in support of the aforesaid ground, it was found on facts that supply of wrong translations had indeed adversely affected the right of dentenues in those cases in making effective representations. In this regard, learned APP is justifed in relying upon judgment of this Court in the case of Bhaskar A. Shetty (supra), wherein it has been categorically laid down that the Court must reach a conclusion that incorrect translation of a document or any infrmity in such translation has prejudicially afected or frustrated the right of the detenue to make an efective representation. Therefore, it will not sufce for the petitioner to show error in translation of a few words in a couple of documents, but he will have to demonstrate how such erroneous translation adversely afected his right to make a purposeful and efective representation. We are of the opinion that in the facts of the present case, the petitioner has failed to do so.” “As regards the third ground pertaining to alleged non-application of mind on the part of the respondent No.1 i.e. detaining authority while issuing the detention order, we have perused the grounds of detention as also the entire record of the case. In the grounds of detention, respondent No.1 has not only given the past history but the said authority has also recorded the number of FIRs registered against the petitioner, in respect of which the petitioner is facing trial.” “The respondent No.1 has noted chapter proceedings initiated against the petitioner, as also recent offenses in the form of FIRs registered against the petitioner for serious offenses under the Indian Penal Code as well as the Arms Act. Respondent No.1 has then referred to the two in-camera statements indicating the activities of the petitioner and the manner in which his activities have prejudicially affected public order.” | 916) WP 336 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.336 OF 2021 Pravin Ganpat Kakad Age 23 years Residing at Flat No.8 Krushna Apartment Shivaji Nagar Dindori Road Mhasrul Nashik 1. The Commissioner of Police Nashik City Nashik. 2. The State of Maharashtra WP 336 21.doc Slumlords Bootleggers Drug ofenders Dangerous Persons Video Pirates Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act 1981 whereby petitioner has been detained. The order of detention and the grounds of detention along with relied upon material were served upon the Although number of grounds have been raised on behalf of the petitioner in the present writ petition the learned counsel appearing for the petitioner has pressed groundsh) and in order to challenge the aforesaid detention order. Groundpertains to improper recording of subjective satisfaction about truthfulness of in camera statements Groundsandpertain to wrong translation of relied upon documents and groundpertains to alleged non application of mind by the respondent No.1 detaining authority while issuing the detention order Ms. Jayshree Tripathi learned counsel appearing for the petitioner specifcally submitted that a perusal of the record would show that the truthfulness of the in camera statements was not properly verifed and recorded that there was no subjective satisfaction of the ofcers in that regard. It was submitted that this indicated that the in camera statements could not be accepted as authentic and they could not have been utilized for the purpose of issuing the detention order. In support of the said ground learned counsel for the petitioner WP 336 21.doc has relied upon Lakhan Rohidas Jagtap Vs. Commissioner of Police Pune & Ors. 2009 ALL MR 5261 Smt Vijay Raju Gupta Vs. R. H. Mendonce & Ors. 2001 All MR Cri) 48 Zabin Salim Shaikh Vs. Shri. A. N. Roy 2006 ALL MR 3324 and Ashish S o Robert Felix Vs Commissioner of Police Nagpur City Criminal Writ Petition No.3914 It was submitted by the learned counsel for the petitioner in the context of groundsandraised in the writ petition that wrong translation of vital documents relied upon by the respondent No.1 detaining authority had vitiated the detention order. It was submitted that such wrong translation adversely afected the right of the petitioner under Article 22(5 of the Constitution of India for making an efective representation. Learned counsel for the petitioner further submits that a perusal of the detention order demonstrated that there was non application of mind because it was stated by the respondent No.1 that prejudicial activities of the petitioner concerned six named areas and adjoining localities of Nashik city whereas there was no material to support such an assertion. On this basis it was claimed that the detention order deserved to be set aside. In this regard learned counsel for the petitioner relied upon Vijaya Ganesh Gajre Vs Commissioner of Police Pune & Ors. Criminal Writ Petition No.50515 WP 336 21.doc On the other hand Mr. J. P. Yagnik learned APP appearing on behalf of the respondents submitted that there was no substance in the contentions raised on behalf of the petitioner. Firstly it was stated that the ground pertaining to alleged improper verifcation about truthfulness of in camera statements was not sustainable because there was no set format under which such verifcation was required to be recorded. It was submitted that in the present case the material on record sufciently demonstrated that the in camera statements had been verifed by the concerned ofcer and that therefore it could not be said that such statements were not reliable or that the respondent No.1 could not have considered such statements while issuing the detention order. In this regard learned APP relied upon judgment of this dated 03 04.03.2016 passed in Criminal Writ Petition No.45115 Santosh Kashinath Kamble Vs. State of Maharashtra & Ors Learned APP further submits that ground pertaining to improper or wrong translation of documents was also not sustainable for the reasons that the petitioner was required to demonstrate the prejudice that he had sufered due to such alleged wrong translation. It was further submitted that when the representation was admittedly made through advocate such a ground was not available to the petitioner. In this regard learned APP relied upon judgment of this Court in the case of Bhaskar A. Shetty Vs. M. N. Singh Commissioner of Police & Ors 2001(5) Bom.C.R. 718 WP 336 21.doc Learned APP further submits that the ground regarding non application of mind was without any substance because entire material that was relied upon by the respondent No.1 detaining authority was communicated along with the grounds of detention to the petitioner and therefore it could not be said that the detention order was liable to be set aside Learned APP submitted that the material on record sufciently demonstrated that the activities of the petitioner were prejudicial to public order and therefore the detention order We have heard learned counsel for the rival parties and we have perused the writ petition as well as the replies and also the record pertaining to the case. In matters concerning detention of persons by exercise of power under statutes like the MPDA Act the Courts have consistently scrutinized the material on record in detail so as to ensure that all safeguards are properly followed by the concerned authorities in order to ensure that the valuable rights available to detenues under Article 22 of the Constitution of India are not violated. The authorities are expected to scrupulously follow such requirements so as to ensure that detention of a person in exercise of such extraordinary power without recourse to ordinary law is strictly in accordance with law In the present case in so far as the frst ground of challenge is concerned learned counsel for the petitioner has submitted that the verifcation regarding truthfulness of in WP 336 21.doc camera statements was not in accordance with law and therefore the in camera statements could not have been relied upon. In reply to the said ground respondent No.1 has specifcally stated that he was subjectively satisfed regarding the truthfulness of in camera statements and that the said statements were verifed by the Deputy Commissioner of Police Zone 1) Nashik City. The endorsement made by the said ofcer has been quoted in the reply and this is as per the record of the case. Learned counsel for the petitioner has relied upon four judgments mentioned above to claim that such verifcation in the present case was not in accordance with law In these judgments it was found on facts that the verifcation was not satisfactory and therefore in camera statements could not have been made the basis for issuance of the detention order. In this regard a division bench of this Court in the case of Santosh Kashinath Kamble has held that there is no particular format in which verifcation of an in camera statement has to be recorded. It is laid down that there should be verifcation on such in camera statements and no particular format is expected and no particular words and expressions are supposed to be employed while recording verifcation of such in camera statements. The endorsement of the Deputy Commissioner of PoliceNashik City fled by respondent No.1 shows that the places mentioned in the in camera statements were visited by the verifying ofcer and truthfulness of the incidents mentioned in the statements was verifed from the people present during such incidents. We are WP 336 21.doc of the opinion that such an endorsement clearly satisfes the requirement about verifcation of truthfulness of in camera statements and therefore we fnd that there is no substance in the aforesaid ground raised on behalf of the petitioner As regards the second ground of challenge pertaining to wrong translation of certain documents supplied along with the order of detention it is necessary to peruse the documents that were allegedly wrongly translated. We found on a perusal of the documents that there appear to be errors in the translation of few words in a medical certifcate and part of reply to a bail application concerning the petitioner. The basis for claiming that such wrong translation ought to be held to be fatal to a detention order is that it interferes with the right of the detenue to make an efective representation. In the present case we are unable to appreciate how error in translation of the aforesaid two documents adversely afected the right of the petitioner to make an efective representation In the six aforesaid judgments on which the learned counsel has placed reliance in support of the aforesaid ground it was found on facts that supply of wrong translations had indeed adversely afected the right of dentenues in those cases in making efective representations. In this regard learned APP is justifed in relying upon judgment of this Court in the case of Bhaskar A. Shetty wherein it has been categorically laid down that the Court must reach a conclusion that incorrect translation of a document or any infrmity in such translation has prejudicially afected or frustrated the right of the detenue WP 336 21.doc to make an efective representation. Therefore it will not sufce for the petitioner to show error in translation of a few words in a couple of documents but he will have to demonstrate how such erroneous translation adversely afected his right to make a purposeful and efective representation. We are of the opinion that in the facts of the present case the petitioner has failed to do so Learned APP is justifed in bringing to the notice of this Court that the representation in the present case was made by the petitioner through his advocate and that neither the petitioner nor his advocate at any point in time claimed that wrong translation of the said documents had prejudicially afected the right of the petitioner to make a purposeful representation. Therefore we fnd that there is no substance in this ground also As regards the third ground pertaining to alleged non application of mind on the part of the respondent No.1 i.e detaining authority while issuing the detention order we have perused the grounds of detention as also the entire record of the case. In the grounds of detention respondent No.1 has not only given the past history but the said authority has also recorded the number of FIRs registered against the petitioner in respect of which the petitioner is facing trial. The respondent No.1 has noted chapter proceedings initiated against the petitioner as also recent ofences in the form of FIRs registered against the petitioner for serious ofences under the Indian WP 336 21.doc Penal Code as well as the Arms Act. The respondent No.1 has then referred to the two in camera statements indicating the activities of the petitioner and the manner in which his activities have prejudicially afected public order In this backdrop we fnd that the ground of non application of mind raised on behalf of the petitioner cannot be sustained. The judgment on which the learned counsel for the petitioner has placed reliance in this regard i.e. the case of Vijay Ganesh Gajre is distinguishable on facts because in the said case this Court found that the detaining authority had wrongly placed reliance on certain FIRs and that the subjective satisfaction of the detaining authority was on wrong set of facts. Such is not the case here and this is evident from the contents of the grounds of detention in the present In view of the above since we have found that the grounds of challenge specifcally raised on behalf of the petitioner are without any substance the writ petition deserves to be dismissed. Accordingly the writ petition is dismissed. MANISH PITALE J S. S. SHINDE J] |
When the petitioners are in settled possession, they cannot be dispossessed: Andhra Pradesh HC | A person in possession cannot be dispossessed by appointing a receiver since the said person established his prima facie possession. It is impressible under the law for another person to enjoy the property by dispossessing the person who has legal possession of the property, as was held in the matters between Appinedi Pothuraju v Tahsildar by Hon’ble Justice M. Satyanarayana Murthy in WP Nos.803 and 10612 of 2021, decided on 7 January,2022. The two writ petitions were filed by Appinedi Pothuraju and Sayyed Jenny under Article 226 seeking relief since their property was interfered in an arbitrary way without following due process of law. Since the relief pleaded by both the petitions was same, they were taken under Common Order. In the first case, the petitioner claimed that he is the rightful owner of the land since his father purchased the land via a Registered Sale Deed. The respondent filed against this; however, the potion was dismissed. When the petitioner started to maintain his land by clearing bushes, he was stopped by the staff of the respondent who tried to interfere into his land by not following due process of law. In the second case, it is claimed that the petitioner being the rightful owner of the land, started to construct the house and while he was doing so, he was interfered by the respondent without following due legal process. It is also contended that the brother of the respondent was selling the land to third parties claiming that the land is in their possession since a dispute in that regard was pending. It was submitted by petitioners that in both the cases, the petitioners are in possession and enjoyment of the property, either of respondents cannot disposes them without following due process of law. Even if there is a proceeding under Section 146 (1) and 145 of Cr. P. C , it does not mean that portioners lose their protection of possession under the law. However, the respondents submitted that the appeal is pending before the court and no order shall be issued to restrain the respondents from interfering the property. The court after hearing the pleadings from both the sides, stated that the dispute is between the two private individuals and the respondents taking advantage of that is impermissible under the law. Applying the precedent set out by the apex court in the case of Rame Gowda (dead) by L.Rs. v. M. Varadappa Naidu (Dead) by L.Rs., the court stated that , when the petitioners are in settled possession and enjoyment of the property, they cannot be dispossessed, without following due process of law in view of the law. The court declared the actions of the respondent of interring into the portioners property without following the due process of law as arbitrary. | THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION Nos.803 and 106121 COMMON ORDER: These two writ petitions are filed by one Appinedi Pothuraju and Sayyed Jany under Article 226 of the Constitution of India for issue of Writ of Mandamus declaring the action of the respondent No.1 in interfering with possession and enjoyment of the petitioners over the land admeasuring 310.25 Sq.Yds and 351 Sq.Yds respectively situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District without following due process of law as arbitrary illegal and consequently direct respondent No.1 not to interfere with the civil dispute pending between the petitioners and respondent No.3 over the land referred above. Both these petitions are filed claiming identical relief by different petitioners having different extents of land in the same survey number in Pedana Village and Mandal Krishna District and the issue involved in these two petitions is one and the same. Therefore I am of the view that it is expedient to decide both these petitions by common order. The factual matrix in W.P.No.8021 is as follows: Petitioner is claiming that he is the absolute owner of the land 310.25 Sq.Yds situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District with exclusive possession and enjoyment by virtue of Registered Gift Deed bearing Doc.No.865 2011 dated 16.05.2011 executed by his father. Petitioner s father purchased the said land under Registered Sale Deed bearing Doc.No.1905 2009 from Chennakcsavula Rambabu and Thota Paideshwar Rao. They have also purchased the said land under Registered Sale Deed from MSM J wps_803 and 10612_2021 Sala Sreenu. Respondent No.3 herein filed O.S.No.111 against her family members and others for partition of the land. The petitioner s land is also part of the item No.2 of the schedule property in the Partition Suit and he was added as defendant No. 14. On contest the said suit was dismissed. Aggrieved by the same the respondent No.3 filed A.S.No.178 of 2019 and the same is pending before this court. Since there is a threat of encroachment by the neighbours petitioner intended to clean the bushes in the land and construct the compound wall and house after obtaining the permission from the Municipality. After dismissal of the suit the petitioner informed the said fact to respondent No.1 and once again started clearance of bushes in his land but the staff of respondent No.1 office came and directed the petitioner not to do any activity in the land on the ground that A.S.No.1719 filed by respondent No.3 which is pending before this Court. Respondent No.1 is no way concerned with the dispute pending between the petitioner and respondent No.3 in A.S.No.178 of 2019 on the file of this Court. Without following due process of law respondent No.1 is interfering with petitioner s possession and enjoyment at the instance of the respondent No.3 requested to grant relief as claimed in the writ petition. The factual matrix in W.P.No.106121 is as follows: The Petitioner is claiming that he is the absolute owner of the land 351 Sq.Yds situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District with exclusive possession and enjoyment having purchased the same under Registered Sale Deed bearing Doc.No.2167 2014 dated 25.08.2014 executed by his vendor Mohammed Athavulla. The Andhra Pradesh Housing Corporation issued orders dated 28.01.2018 granted housing loan of MSM J wps_803 and 10612_2021 Rs.3 50 000 with subsidy benefit of Rs.2 50 000 sponsored by the Central and State Government. When the petitioner intended to construct house respondent No.1 without following due process of law is interfering with his possession and enjoyment. When the petitioner raised the tin roof shed in the land the staff from the office of respondent No.1 without issuing any notice straightaway demolished the shed. The petitioner erected thatched shed and carrying on mutton business in the said premises. No dispute was raised by any person including the respondent Nos.3 and 4 against possession and enjoyment of the land. Respondent No.3 filed O.S.No.16 of 2011 against his vendor and others for partition and the said suit was dismissed. Thereafter respondent No.3 filed A.S.No.178 of 2019 and the same is pending before this Court. Respondent No.4 is also not disputing the possession and enjoyment of the petitioner over the land. Respondent No.4 is claiming the land admeasuring Ac.1.00 cents as per the gift deed alleged to have executed by the vendor out of the total extent of Ac.2.50 cents and filed O.S.No.174 of 2014 against one Mohammed Ibrahim and obtained exparte decree dated 26.10.2018. While things stood thus respondent No.1 without following due process of law is trying to interfere with his possession and preventing him to raise construction of the building in the said land on the ground that in the year 2014 the respondent passed an order under section 146of the Code of Criminal Procedurein M.C.No.37 of 2014 dated 22.12.2014 in respect of the land extent Ac.2.50 cents in R.S.No.671 1A and his extent is also located in the said land. Once the rights and title of his vendor has been adjudicated by the competent civil court and absolutely there is no dispute was raised by any person over the subject land respondent No.1 without MSM J wps_803 and 10612_2021 following due process of law should not interfere with his possession and respondent No.1 is not entitled to prevent him from making construction of the building. The persons who have got legitimate rights have agitated their rights through court of law and the competent civil court adjudicated the dispute passed the final judgment. At this stage the action of respondent No.1 in trying to interfere with his peaceful possession and enjoyment and preventing him to raise construction of the building is illegal and arbitrary requested to grant relief as claimed in the writ petition. As this Court granted interim order respondent No.3 filed vacate stay petition along with counter denying all the material allegations inter alia contending that the petitioner in W.P.No.803 of 2021 has no locus standi to file the present petition. One Hayath Bee who was the sister of late Hasan Ali father of respondent No.3 was the original owner of the land admeasuring Ac.4.00 in Sy.No.671 1 Pedana village and mandal Krishna District. Out of the said Ac.4.00 cents she gifted Ac.1 00 cents to Ajmathunnisa who is the sister of respondent No.3 out of love and affection and for her bright future by virtue of registered document No.1269 1963 who is the daughter of Hasan Ali. Father of respondent No.3 succeeded the land admeasuring Ac.3.00 cents from Smt. Hayath Bee and out of the said land of Ac.3.00 his father sold Ac.1.76 cents to subsequent purchasers. Father of the respondent No.3 possessed Ac.1.24 cents of land in Sy.No.671 1. As such out of remaining Ac.3.00 of land only Ac.1.24 cents is left after alienation by the father of respondent No.3. It is further contended that the brother of respondent No.3 by name Athaullah Mohammad got managed the revenue authorities and obtained patta for Ac.2.50 cents of land instead of Ac.1.24 cents MSM J wps_803 and 10612_2021 of land. After obtaining patta his brother started executing various sale deeds in favour of third parties. As the brother of respondent No.3 did not come forward for partition of the property left behind by his father who died intestate he filed O.S.No.111 on the file of X Additional District and Special Sessions Judge Krishna for partition. The said suit was dismissed on 31.12.2018. Aggrieved by the decree and judgment he filed A.S.No.178 of 2019 which is pending for adjudication. The land claimed by the present writ petitioner is part and parcel of the schedule land mentioned in the suit. When his brother s title and possession over the subject land is disputed the writ petitioner cannot claim possession over the said land. The writ petitioner suppressing all these facts filed the present writ petition and obtained interim direction in I.A. No.1 of 2021 directing the Tahsildar not to interfere with the possession of the writ petitioner without following due process of law if he is in possession. It is further contended that due to the execution of multiple sale deeds by the brother of respondent No.3 without being in possession of the land several disputes and law and order problem arose. On the requisition of police the Tahsildar issued 145 Cr.P.C. proceedings and appointed Revenue Inspector as Receiver to the said land and now the Tahsildar is the custodian of the subject land. As such it is crystal clear that the writ petitioner is not in possession over the subject land. More over when a comprehensive appeal is pending before this Court with regard to the subject land the writ petitioner cannot claim to be in possession requested to dismiss the writ petition. Respondent No.1 filed counter in W.P.No.10612 of 2021 denying the material allegations narrating the history of the case. MSM J wps_803 and 10612_2021 The specific contention of respondent No.1 is that there is a civil dispute between the petitioner in W.P.No.10612 of 2021 and respondent Nos.3 and 4 regarding land admeasuring 351 Sq.Yds situated in Rs.671 1A of Pedana Village of Krishna District which led to initiation of proceedings under Section 146in M.C.No.37 of 2014 dated 22.12.2014. Since civil suit is pending the Tahsildar Pedana being the Executive Magistrate has promulgated orders under Section 146of Cr.P.C. to maintain law and order and also to maintain peace and tranquillity and the same is in force. Thus the subject land is in the custody of Revenue Inspector and the petitioner has nothing to do with the possession of the land requested to dismiss the writ petition. During hearing Mrs.P.Srilatha Reddy learned counsel for the petitioners in both the petitions would contend that when the petitioners are in possession and enjoyment of the property either of the respondents cannot dispossess them without following due process of law. There is absolutely no order of prohibition against the enjoyment of the property by the petitioners having acquired title either under the Gift deed or sale deed by both the petitioners and the proceedings initiated under Section 146 and 145 of Cr.P.C. will not come in the way of the petitioners to enjoy the property and on the pretext of initiation of proceedings under Section 146and 145 of Cr.P.C. the respondents cannot interfere with the possession and enjoyment of the property. Unless undue interference of respondent No.1 is prevented it is difficult for the petitioners to protect their possession requested to issue a direction as sought for in the petition. MSM J wps_803 and 10612_2021 Sri B.Mayur Reddy learned counsel for respondent No.3 would submit that when the appeal is pending before this Court regarding partition of the property more particularly when the disputed property is part and parcel of schedule land mentioned in the suit no order be issued restraining respondent No.1 from interfering with the enjoyment of the property allegedly by the petitioners but the petitioners obtained interim direction suppressing real facts requested to dismiss the writ petition. It is an undisputed fact that the land admeasuring Ac.4.00 cents in Sy.No.671 1 Pedana Village and Mandal Krishna District originally belongs to one Hayath Bee sister of father of respondent No.3. As she died issue less father of respondent No.3 succeeded Ac.3.00 cents from Hayath Bee. Out of Ac.3.00 cents father of respondent No.3 late Hasan Ali sold Ac.1.76 cents while retaining Ac.1.24 cents. Later brother of respondent No.3 Athaullah Mohammad got managed the revenue authorities obtained pattadar passbooks and title deeds in his favour for an extent of Ac.2.50 cents instead of Ac.1.24 cents executed sale deeds in favour of third parties. Later there were transactions among third parties. The petitioners are claiming title from Athaullah Mohammad and the property was transferred to different persons after obtaining sale deed from the brother of respondent No.3. Thus the execution of sale deed by Athaullah Mohammad conveying the disputed property which is the subject matter of suit O.S.No.16 of 2011 on the file of the X Additional District and Sessions Judge Machilipatnam for partition which was dismissed on 31.12.2018 and the appeal is pending in A.S.No.1719 before this Court are not in dispute. No interim order was granted during pendency of suit or in the MSM J wps_803 and 10612_2021 appeal. Therefore the sale of property in favour of third parties is valid till the suit is decreed. However at this stage it is difficult to conclude that the possession of the petitioner is unauthorised or illegal or without any title. Learned counsel for respondent No.3 in the vacate stay petition pleaded additional facts regarding filing of suit O.S.No.174 of 2014 on the file of the Principal Junior Civil Judge Machilipatnam by Mohammed Khizre Alam for permanent injunction to restrain Mohammed Ibrahim his men and supporters from interfering with his peaceful possession and enjoyment of the land in an extent of Ac.1.00 cents in Sy.No.671 1671 1Asituated in Pedana Village and Mandal Krishna District based on the gift deed bearing No.11714 dated 04.07.2014 obtained from his junior maternal aunt Ajmathunnissa @ Ajmathunnissa Begum and the said suit was decreed on 26.10.2018 in favour of Mr. Mohamammed Khizre Alam restraining the Mohamammed Ibrahim his followers and supporters from interfering with the possession and enjoyment of the said property in Sy.No.671 1 671 1A situated in Pedana Village and Mandal Krishna District. The petitioner s vendor s vendor Mr.Sala Srinu filed implead petition vide I.A.No.29214 in O.S.No.174 of 2014 which was dismissed on 28.08.2015 on specific ground. In the said suit in O.S.No.1714 certain other parties by name Mr. Mohd. Habibul Rehman Mr. Mohd. Vasivul Reham Mr. Abdul Waheed and Habeebunissa filed implead petition vide I.A. No.3114 and the same was dismissed on the ground that they had no right or interest in the Plaint schedule property and the C.R.P.No.50 2016 filed against the order was also ended in dismissal on 08.07.2016. MSM J wps_803 and 10612_2021 It is also stated in the vacate stay petition that one Mr. Mohd. Khizre Alam filed W.P.No.28589 of 2014 praying to direct Commissioner Pedana Municipality to take immediate action on the representation of the petitioner dated 20.08.2014 which led to initiation of proceedings under Section 146 of Cr.P.C. and also explained pendency of litigation in different Courts. Thus as seen from the material on record A.S.No.1719 is pending before this Court for adjudication but the suit O.S.No.174 of 2014 filed by Mohammed Khizre Alam was decreed restraining Mohammed Ibrahim his men and followers by decree dated 26.10.2018. The decree in O.S.No.174 of 2014 is binding on Mohammed Ibrahim his men and followers but not binding on any of the petitioners. If any of the petitioners are claiming title to the property through him it is binding on them. However the petitioners claiming title to the property based on registered gift deed bearing No.8611 dated 16.05.2011 and sale deed document No.2167 of 2014 dated 25.08.2014 respectively which are still valid as on date. Therefore the petitioners are deemed to be in possession and enjoyment of the property in their own right by virtue of gift deed and sale deed respectively. In any view of the matter when respondent No.1 W.P.No.106121 admitted about the pendency of civil disputes the possession and enjoyment of either of the petitioners and respondents cannot be decided by this Court while exercising power under Article 226 of the Constitution of India and in view of the judgment passed in O.S.No.1714 by the Principal Junior Civil Judge Machilipatnam the possession of the petitioner MSM J wps_803 and 10612_2021 W.P.No.106121 is doubtful since he is claiming right through Mohammed Ibrahim. Therefore the title is in dispute. The petitioner in W.P.No.803 of 2021 to substantiate his contention that he is in possession of the property placed on record gift deed dated 16.05.2011 executed in his favour by his father gifting 310.25 Sq.Yds. So also sale deed obtained by his father from Chennakesavula Rambabu. He also produced tax receipts evidencing payment of tax for the house constructed in NTR Colony Ward No.8 Pedana with assessment No.1072008778. These documents cumulatively establish that the petitioner in W.P.No.803 of 2021 is residing in the house and paying property tax to the Municipality but the house is in existence in the disputed land. Therefore the petitioner is able to establish his possession and enjoyment over the property irrespective of the title to the property which is the subject matter of A.S.No.178 of 2019. Thus the petitioner cannot be dispossessed except by due process of law notwithstanding the nature of the possession. Hence any amount of interference with the possession and enjoyment of the property by respondent No.1 without following due process of law is illegal and arbitrary as respondent No.1 has no right to interfere with such possession irrespective of its nature. Hence the alleged attempt of respondent No.1 to interfere with the possession and enjoyment of the petitioner over the subject property is without any right and the same is declared as illegal arbitrary and violative of Article 14 and 300 A of the Constitution of India. When the petitioner in W.P.No.106121 is claiming to be in possession it is for him to produce material to substantiate his contention. To substantiate the contention of the petitioner the MSM J wps_803 and 10612_2021 petitioner in W.P.No.106121 produced copy of sale deed trade license issued by Pedana Municipality orders issued by the A.P.State Housing Corporation to establish that he is in possession of the property carrying on mutton business. The documentary evidence produced by the petitioner in W.P.No.106121 would establish that the petitioner is in possession and enjoyment of the property as on date irrespective of title based on sale deed bearing document No.2167 of 2014. Hence any amount of interference with the possession and enjoyment of the petitioner by respondent No.1 is illegal and arbitrary. Section 146 of Cr.P.C. says that if the Magistrate at any time after making the order under sub section of section 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in section 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Sub sectionof Section 146 of Cr.P.C. has no application as respondent No.1 is contending that revenue inspector was appointed as receiver. In the facts and circumstances of the case the trial Court already determined the rights of the parties in O.S.No.16 of 2011 however A.S.No.178 of 2019 is pending before this Court. In such case a person in possession cannot be dispossessed by appointing a receiver since the said person established his prima facie possession. MSM J wps_803 and 10612_2021 from that the dispute is purely between two private individuals but taking advantage of the situation respondent No.1 is trying to interfere with the possession and enjoyment of the property which is impermissible under law. Further when the petitioners are in settled possession and enjoyment of the property they cannot be dispossessed without following due process of law in view of the law declared by the Apex Court in “Rame Gowda by L.Rs. v. M.Varadappa Naidu Dead) by L.Rs.1”. Applying the said principle to the facts of the present case I find that the action of respondent No.1 in interfering with the possession and enjoyment of the petitioners over the subject property is illegal and arbitrary. In the result the writ petitions are allowed declaring the action of the respondent No.1 in interfering with possession and enjoyment of the petitioners over the land admeasuring 310.25 Sq.Yds and 351 Sq.Yds respectively situated in R.S.R.No.671 1A of Pedana village and mandal Krishna District without following due process of law as arbitrary and illegal. No costs. The miscellaneous petitions pending if any shall also stand closed. JUSTICE M. SATYANARAYANA MURTHY 1 2004SCC 769 |
Purpose of issuing tender is to invite maximum bids from bidders : Delhi High Court | All bids meeting the technical qualification must be invited so that the employer/ tender floating authority gets the most favorable product or services at the most competitive price. This was held in the judgment passed by a two- judge bench comprising Hon’ble Mr. Justice Vipin Sanghi And Hon’ble Mr. Justice Jasmeet Singh, in the matter Resoursys Telecom And Anr V. Navodaya Vidyalaya Samiti [W.P.(C) 6676/ 2021 & CM APPLs. 21018/2021, 23797 – 798/2021], dealt with an issue where the petitioner filed a petition seeking the quashing of invitation to tender dated 12.02.2021 issued by Respondent No.1 i.e. Navodaya Vidyalaya Samiti on the portal of Government E-Market Place (GEM), and in particular, letter dated 29.06.2021 issued to the Petitioner. The Petitioner is a partnership firm dealing in trading and supplying of information and technological goods. Petitioner No.2 is one of the partners of Petitioner No.1. The Respondent No.1 Navodaya Vidyalaya Samiti (NVS) is an autonomous organisation under the Ministry of Education. Respondent No.1 issued invitation to tender for supply of 68,940 tablets on the online trading portal of the Government of India, i.e. GEM. The essential Qualification Criteria with regard to past experience contained in the Notice Inviting Tender (NIT) – with which we are concerned, is that the bidder should have the stipulated past experience of dealing in “same or similar category products”. The bid document was subsequently revised, and there were certain corrigendum and amendments that were issued by Respondent No.1 from time to time, changing certain technical and general conditions of the tender. The Petitioner being desirous of participating in the tender process offered its product i.e. tablet, which is being manufactured by an Indian company, namely, M/s Lava International Ltd., on 27.04.2021. The Petitioner was duly authorised by the manufacturer to participate in the tender process. The Respondent gave the reason that the petitioner does not qualify the past performance criteria, as the work orders for smart phones, laptops, aadhar kits, power banks, etc. are not considered as same or similar category products of tablets. Counsel for the petitioner is that smart phones are goods which belong to the same or similar category, as “Tablets”. The act of Respondent No.1 in excluding smart phones from “same or similar category of products” is unreasonable, and against the principles of fair play and logic. After hearing both the parties The Hon’ble Delhi High Court allowed the petition and quashed the Technical disqualification of the petitioner in respect of the tender in question. The court held that the tender floating authority is best person to interpret the terms of the tender, as they know what best is the requirement and how to achieve the same. However, the authorities cannot act arbitrarily, whimsically and contrary to the terms and conditions of the tender. As noticed hereinabove, the terms and conditions of the tender are clear. However, even if the terms of the tender are unclear and ambiguous, can it be left to the option of the tender floating authority to interpret it in a manner which is contrary to their plain meaning? The answer is “No”. Click here to view judgement | IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 6676 2021 & CM APPLs. 21018 2021 23797 798 2021 Judgment reserved on: 04.08.2021 Judgment delivered on: 27.09.2021 RESOURSYS TELECOM AND ANR. ..... Petitioners Through: Mr. Dhananjai Jain Mr. Bhoop Singh and Mr. Omita Unnarkar Advs. NAVODAYA VIDYALAYA SAMITI Respondent Through: Mr. Bijender Singh Adv. for Resp. Mr. Krishnan Venugopal Sr. Adv. with Mr. T. Sundar Ramanathan Mr. Ishaan Chakrabarti Mr. Shivendra Singh and Mr. Vivek Pandey Advs. For the Intervenor. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT O F T H E C O U R T The present writ petition has been filed to seek the quashing of invitation to tender dated 12.02.2021 bearing No. GEM 2021 b 1032762 issued by Respondent No.1 i.e. Navodaya Vidyalaya Samiti on the portal of Government E Market Place and in particular letter dated 29.06.2021 issued to the Petitioner. present writ petition are as under. Briefly stated the facts as per petitioner giving rise to filing of the W.P.(C) 6676 2021 The Petitioner is a partnership firm dealing in trading and supplying of information and technological goods. Petitioner No.2 is one of the partners of Petitioner No.1. The Respondent No.1 Navodaya Vidyalaya Samiti is an autonomous organisation under the Ministry of Education Ministry of Human Resource Development Department of School Education and Literacy Govt. of India. The Chairman of Respondent No.1 is the Minister of Education. The Respondent No.1 functions through the Executive Committee under the Chairmanship of the Minister of Education and the Executive Head of the Administration is the Commissioner. Respondent No.1 issued invitation to tender for supply of 68 940 tablets on the online trading portal of the Government of India i.e. GEM2021 b 1032762. The essential Qualification Criteria with regard to past experience contained in the Notice Inviting Tenderwith which we are concerned is that the bidder should have the stipulated past experience of dealing in “same or similar category products”. The bid document was subsequently revised and there were certain corrigendum and amendments that were issued by Respondent No.1 from time to time changing certain technical and general conditions of the tender. However the same are not relevant for the purpose of adjudicating the present writ The Petitioner being desirous of participating in the tender process offered its product i.e. tablet which is being manufactured by an Indian company namely M s Lava International Ltd. on 27.04.2021. The Petitioner was duly authorised by the manufacturer to participate in the tender process. W.P.(C) 6676 2021 One of the conditions for qualification in the tender was of having supplied at least 60% of the required tendered quantity units in one financial year in the preceding three years from the date of tender to any Government or Public Sector Undertakings of “same or similar category products” as that of tablet. It was also required that 35 % of the tender quantity units must have been executed as a single order in one financial year. Since the Petitioner had supplied much more than the desired quantity under “same or similar category product” as that of a tablet it submitted its bid. The petitioner claimed its past experience on the basis of the supplies made by it of mobile phones and laptops to various Governments and Public Sector Undertakings6676 2021 similar category products of tablets. The exact extract of the communication of the respondent reads as follows: Bid Clause No Content of Clause Disqualification Clause 4 of tender document for any of 2018 19 the FY 2019 20 2020 21. 4. Work Orders Phones Laptops Adhar Kits Printers bank etc are not considered as same or similar category products of tablets. performance: The its OEM supplied same or similar category products for 80% to 60% vide quantity in atleast one of central state govt. Org cumulative order quantity in any one financial year) Copies ” emphasis supplied) 10. Respondent No.1 further on 01.07.2021 clarified “Technical Evaluation Committee has considered only tablets under similar category to W.P.(C) 6676 2021 ensure proven products". Aggrieved by the said action of Respondent No.1 the Petitioner filed the present writ petition seeking the following prayer : “a) Quash invitation to tender dated 12.2.2021 bearing no. GEM 2021 b 1 032762 issued by Navodaya Vidyalaya Samiti on the portal of Government E Market Place GEM) being vitiated due to arbitrary & whimsical process and in particular letter dated 29.6.2021 issued to the petitioner” 11. The submission of learned counsel for the petitioner is that smart phones are goods which belong to the same or similar category as “Tablets”. The act of Respondent No.1 in excluding smart phones from “same or similar category of products” is unreasonable and against the principles of fair play and logic. 12. The Petitioner has placed reliance upon various tenders issued by: Information Technology Society MITS) Kerala State Electronics Development Corporation Limited HP State Electronics Development Corporation Ltd Bihar Rural Development Society working under the Government of Bihar REC Power Distribution Company Limited and the Department of Education Government of Bihar to argue that various State Governments and PSUs had issued similar tenders wherein past experience of supply of tablets and smart phones were treated alike. The relevant summary produced by the petitioner is reproduced under as : “i. Tender issued by Govt. of Bihar Rural Development Department in which in SI. No. 10 under the category of experience and technical capacity it has been stated that "if the bidder is supplier of the product then it should have at least 3 years experience in trading similar products i.e. products like tablets smart phones with minimum Rs. 5 Crores and above 3 targets within last 3 years and at the same time W.P.(C) 6676 2021 respective manufacturer of the offered product must fulfil the requirement of Clause 2". “ii. REC Power Distribution Co. Ltd. has also issued bids inviting tenders for 1 000 tablets wherein in pt. no. 2 to the clarification to the amendment it has been stated "bidder OEM should have desired experience in supply of tablets smart phones as main contractor during the last three financial years " “iii. That Department of Education Govt. of Bihar has invited tablets for e leaming which are for similar requirement as in the present writ petition wherein the past qualification in Clause 3. 7.3 the criteria is stated to be "the bidder should be either original equipment manufactureror authorized supplier in India of mobiles tablets". “iv. That issued by Meghalaya Information Technology Society Govt. of Meghalaya inviting tenders for tablets in clause 2.l.l(ii) has considered tablets smart phones laptops under same and similar category” (emphasis supplied) “v. H.P. State Electronic Development Corporation procuring smart phones in clause 3 of its tender documents at has also held smart phones tablets and mobile devices under same and similar category as that of smart phones.” emphasis supplied) 13. Per contra the learned counsel for the Respondent NVS argued that smart phones are a different category of product from tablets and laptops. As per Respondent No.1 tablets computers and smart phones are different goods as per their technical commercial and trade related definitions norms and regulations prescribed by various authorities. The Respondent has highlighted the difference through various examples which are the following: W.P.(C) 6676 2021 “(I) World Customs Organization Nomenclature and Classification of Goods under International Convention on the Harmonized Commodity Description and Coding System known as HS Code. WCO has put the “tablet computers” and “Smartphones” in different categories of goods. The same is evident from the fact that: the Tablet Computer‟s classification code as to the constituent material is 8471.30 included in the Chapter 84 of Section XVI of the list titled as Nuclear Reactors Boilers Machinery and Mechanical Appliances parts thereof. Smartphone‟s classification code is 8517.12 included in chapter 85 of Section XVI of the list titled as Electrical Machinery and Equipment and parts thereof Sound Recorders and Reproducers Television image and Sound Recorders and Reproducers and parts and accessories of such article. II) Ministry of Electronics and Information Technology MeitY) Govt. of India has also considered a tablet Computer and a smartphone as two different goods or commodities. The same is evident from the Office Memorandum No. W 43 4 2019 IPHW MeitY Govt. of India Ministry of Electronics and Information Technology Electronics Niketan dated 16.09.2020 regarding Public Procurement order 2017 wherein tablet computer is defined under clause 4.5 and smartphone is defined in Clause 4.13. The same are reproduced herein below: “4.5 Tablet Personal Computersthe purpose of Definition: For Notification a Tablet PC shall necessarily consist of an Integrated Motherboard with on board CPU Processor Memory and W.P.(C) 6676 2021 “4.13 Cellular Mobile Phones A) Definition: For Power Module Display Paneland integrated battery the purpose of Notification a Cellular Mobile Phone Feature Phone or Smart phone) shall necessarily consist of a Main Printed Circuit Board Battery Pack Display Unit Key Pad Touch Panel Charger Adapter Microphone & Receiver Vibrator Motor Ringer and Mechanics.” III) Ministry of Electronics and Information Technology MeitY) has launched two separate and distinct production incentive schemes namely Production Incentive Scheme for IT Hardware that includes “Tablet Computer” and Production Incentive Schemefor Large Scale Electronics manufacturing for “Smartphone”. The relevant part of the Gazette of India notification is stated herein below: Tablet Computer: Gazette notification No. W 18 28 2020 IPHWMeitY dated 03.03.2021 has considered the aforesaid category under PLI for IT Hardware “4. Target Segment: The Target Segment under PLI shall includeLaptopsTabletsAll in One PCs andServers.” Smartphone: Gazette of India notification No. W 28 1 2019 IPHWMeitY dated 01.04.2020 PLI for Large Scale Electronics Manufacturing “4. Target Segments: The Scheme shall only be applicable for target segments namely mobile phones and specified electronic components 6676 2021 IV) GeM Portal Ministry of Commerce and Industry Govt. of India provides an exhaustive Category Listing of all products sold on its platform. It is clearly evident from the GeM Portal that both the goods namely Tablet Computers and Smartphones are different and categorized as such. The details of the same are stated herein below: a) Tablets Computers fall within the category of “Computer Equipment and Accessories” with sub heading being “Computers”. b) Smartphones fall within two categories: 1) “Data Voice of Multimedia Network Equipment or Platforms and Accessories” with sub heading “Digital Mobile Equipment and 2) “Communications Devices and Accessories” sub heading “Personal Communication Devices”. V) Central Board of Excise & Customs Department of Revenue Ministry of Finance Government of India vide Circular No. 20 2013 Customs F. No. 528 102 2011 STO TU) dated 14.05.2013 specifically clarified that the tablet computers and smartphones are not similar goods and thus same or similar they cannot be placed under category .” VI) Bureau of Indian Standard Ministry of Consumer Affairs Food & Public Distribution Government of India provides a list of different goods or products for compulsory registration…... Without prejudice from the list laptops or notebooks can be considered as similar products as tablet computers as all the three have been placed in one product categorybut mobile phonescannot be considered as same or similar in any manner whatsoever as it has been placed in another distinct categoryof the list. W.P.(C) 6676 2021 that as per The distinguishing effect between both the goods can further be the BIS mandatory requirement the manufactures have to apply for separate licenses i) one for manufacturing of “tablets notebook laptop” and ii) another for “smartphones” “(VII)Commissionerate of Technical Education Education Department Gandhinagar Gujarat had issued a tender on GeM Portal vide Bid No. GEM 2020 B 887128 dated 24.11.2020 for procurement of 3 Lakhs Tablet Computers wherein one of the conditions was: “4. Past Performance: The Bidder or its OEM {themselves or through re seller(s) should have supplied same or similar Category Products for 30% of bid quantity in at least one of the last three Financial years before the bid opening date to any Central State Govt Organization PSU Public Listed Company.” “It is pertinent to note that in the aforesaid bid a clarification modification was sought by the bidders prospective sellers regarding past performance clause. And in the clarification given by the authority it was made clear at the GeM portal that the work orders of “Smartphones” shall not be considered under past performance clause” Bid Number: GEM 2020 B 887128 dated 24.11.2020 on GeM for 3 lacs Tablets Clause in the RFP 30%by GIL DTE No change. As per Bid. Modification Requested Please give relaxation 10% instead of 30% in past performance 1) Indian Market have higher Smart Phone requirement than Tablets so most of Indian W.P.(C) 6676 2021 Manufactures of Smart Phone and Tablets Smartphone in large quantity compare to 2) Many brands will be able to participate with relaxed past performance criteria in view to above mentioned points it is requested to give relaxation to 10% for past performance instead of 30% 14. The Respondent No.1 has further stated that same or similar category of tablets would be “Slate tablets Convertible Tablets Hybrid Tablets Phablets Rugged tablets Tough Tablets Booklet Microsoft Surface Amazon Kindle Fire Surface Pro Tablet PC iPad iPad Air iPad Pro iPad Mini Samsung Galaxy Tab and ThinkPad.” 15. Learned counsel has relied upon various judgments to argue that it is the general or predominant user which would determine the category in which the article will fall. They have further argued that identity of an article is associated with its primary function. The Respondent No.1 also showed various tenders to show that tablets and smart phones were under two different categories. 16. Lastly the Respondent has argued that it is the Tender Floating Authority who is the best person to interpret the terms of the tender. The lawfulness of a decision of a Tender Floating Authority can only be looked into if it is arbitrary irrational unreasonable mala fide or biased. In matters W.P.(C) 6676 2021 of public interest the Courts will not in exercise of power under judicial review interfere even if there is a procedural aberration or error in awarding the contract. 17. Reliance was placed on the Judgment of the Hon‟ble Supreme Court in Municipal Corporation Ujjain and Ors v. BVG India Limited and Ors 2018) 5 SCC 462 wherein it was observed: “21. Thus only when a decision making process is so arbitrary that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions power of judicial review can be exercised. However if it is bona fide and in public interest the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest the Court ordinarily should exercise judicial restraint. When a the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down the same may not ordinarily be interfered with.” taken by 18. At this stage we may take note of the manner in which the proceedings have taken place in this case. The writ petition as originally filed by the petitioner had only two respondents namely Navodaya Vidyalaya Samitiand Union of India. On the day when the petition was preferred the petitioner was not aware that the tender in question had been awarded by respondent No. 1 to any of the bidders. The writ petition came up for hearing before the Court for the first time on 19.07.2021. On W.P.(C) 6676 2021 that day Union of India was deleted as a party respondent. Learned counsel for the respondent NVS appeared on advance notice and informed the Court that the contract had been awarded to the successful bidder. However the name of the successful bidder was not disclosed. We directed the respondent NVS to stay their hands in relation to performance of the contract so awarded. The matter was adjourned to 26.07.2021 to enable the completion of pleadings. 19. On 26.07.2021 learned counsel put in appearance on behalf of the successful bidder i.e. Agmatel India Private Limited and informed the Court that an application for impleadment and another application for interim relief with compilation of documents have been filed. The matter was adjourned to 03.08.2021. 20. On 02.08.2021 C.M. No. 23531 2021 preferred by Agmatel for impleadment was allowed and we directed that Agmatel would be entitled to advance submissions on the date fixed. On 03.08.2021 the matter was further adjourned to 04.08.2021 when the arguments were heard and judgment reserved. 21. Thus it would be seen that the successful bidder Agmatel was impleaded as a party respondent only on 02.08.2021. Prior to that the respondent NVS was contesting writ petition. 22. The Respondent No.2 namely Agmatel the successful bidder has also filed a detailed counter affidavit and has sought to argue to following: Lack of jurisdiction It was argued by Respondent No.2 that no cause of action arose in Delhi as the tender was invited by Respondent No.1 whose office is located in Gautam Buddh Nagar Uttar Pradesh. Thus the petitioner‟s bids were received disqualified W.P.(C) 6676 2021 and rejected in Uttar Pradesh and as no material fact had taken place in the jurisdiction of Delhi this court has no jurisdiction to entertain the present petition. They argued that simply because the petitioners have read the advertisement in Delhi and made the representations to Respondent No.1 from Delhi is not a material fact to form part of cause of action in Delhi. The failure of Respondent No.1 to challenge the jurisdiction will not confer jurisdiction upon the Court. Courts should not interfere in the tender matters Respondent No.2 further went on to argue that it is a well settled position of law that courts should not interfere in the matters of tender and the authors of the tender document best understand and appreciate its requirements. They submitted that the tendering authority themselves considered and identified “tablets” and “smartphones” under different product categories. Consequently the Petitioners had been correctly disqualified by the Respondent No.1. They argued that it is the decision of the author of the Tender to treat Tablet Computer and Smartphones as different category products based on assessment and the courts could not interfere in the same unless there is malafide or perversity. That tablets and smartphones are inherently different products and are used for different purposes. The primary use of a smartphone was as a communication device whereas the primary use of a tablet was that as a computing device. Therefore „similar‟ to tablets would be „laptops desktops notepad etc‟ and not smart phones. The intention of the tender floating authority was clear in the tender It was contended that in order to place smartphones and W.P.(C) 6676 2021 tablets in the same category the petitioners wilfully replaced the term “Tablet Computers” used in the tender with the term “Mobile Tablets”. It was their belief that the term “Tablet Computers” in the tender shows the intention of Respondent No.1 to separate mobile phones from tablets. Classification by Different Authorities the Respondent No.2 attached various definitions and classifications by International and National Authorities showing that tablets and smartphones were defined as different devices. 23. We have heard learned counsels for the parties and have considered their submissions and the documents placed on record. 24. The respondent No. 2 Agmatel has claimed that this court lacks the territorial jurisdiction to entertain this Writ Petition as the tender was issued by NVS from Gautam Budh Nagar Uttar Pradesh and no part of the cause of action arose within the jurisdiction of this Court. Even the respondent No. 1 is not having its office in Delhi. 25. However this submission is meritless as firstly the Respondent No.1 Navodaya Vidyalaya Samiti operates under the Department of School Education & Literacy Ministry of Human Resources Development situated at New Delhi. Secondly and even more importantly this objection to territorial jurisdiction was open to Respondent No.1 to raise. However it was not so raised by it when the writ petition was listed on 19.07.2021 and 26.07.2021. Respondent no.1 in fact not only submitted to the jurisdiction of this Court but also filed a detailed counter affidavit without raising any such objection to the jurisdiction of this Court. Thus respondent No.1 has W.P.(C) 6676 2021 waived this objection and submitted to the jurisdiction of this Court. It is the acts omissions and conduct of respondent No. 1 which are under challenge in this petition. It is for respondent No.1 to primarily defend this petition. Respondent No. 2 has been subsequently added as a party since the outcome of this petition may have a bearing on the rights claimed by Agmatel on the basis of its bid acceptance. Since respondent No. 1 has not raised any objection to the jurisdiction of this Court and has waived it in our view respondent No. 2 has no locus to raise the said objection. In any event it is well settled that lack of territorial jurisdiction if not objected to at the appropriate stage would not impinge on the jurisdiction of the Court to deal with the matter if it has subject matter jurisdiction. This objection of respondent No. 2 is therefore rejected. In relation to the contention of the Respondents that the tender floating authority is the best judge to determine the conditions of a tender and that the courts should not interfere in tender matters we may refer to Reliance Energy & Anr v. Maharashtra State Road Development Corporation Ltd & Ors 2007 SCC 1 wherein the Supreme Court has held: “24. When tenders are invited the terms and conditions must indicate with legal certainty norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of level playing field".” 27. At the outset we may observe that it is nobody‟s case that “smart mobile phones” are the “same” category products as “tablets”. The only W.P.(C) 6676 2021 in dispute: issue is whether under the terms of the NIT “smart mobile phones” can be called “similar Category product” as “tablets”. 28. Now coming to the meat of the matter it will be relevant to reproduce the relevant terms and conditions of the e tender interpretation of which is “1. Experience Criteria: In respect of the filter applied for experience criteria the Bidder or its OEM {themselves or through reseller(s)} should have regularly manufactured and supplied same or similar Category Products to any Central State Govt Organization PSU Public Listed Company for number of Financial years as indicated above in the bid document before the bid opening date. Copies of relevant contracts to be submitted along with bid in support of having supplied some quantity during each of the Financial year. In case of bunch bids the category of primary product having highest value should meet this criterion.” “4. Past Performance: The Bidder or its OEM {themselves or through re seller(s)} should have supplied same or similar Category Products for 80% of bid quantity in at least one of the last three Financial years before the bid opening date to any Central State Govt Organization PSU Public Listed Company. Copies of relevant contracts to be submitted along with bid in support of quantity supplied in the relevant Financial year. In case of bunch bids. the category related to primary product having highest bid value should meet this criterion.” Bid Specific Additional Terms and Conditions “3. The Bidder I OEM {themselves or through reseller(s)} should have executed project for supply and installation commissioning of same or similar Category Products during preceding 3 financial years as on opening of bid as per following criteria: l) Single order of at least 35% of estimated bid value or ii) Two orders of at least 20% each of estimated bid value or Three orders of at least 15% each of estimated bid value.” “14. Experience Criteria: The Bidder or its OEM {themselves or through reseller(s)} should have regularly manufactured and W.P.(C) 6676 2021 supplied same or similar Category Products to any Central State Govt Organization PSU Public Listed Company for 3 years before the bid opening date. Copies of relevant contracts to be submitted along with bid in support of having supplied some quantity during each of the year. In case of bunch bids the primary product having highest value should meet this criterion.” 29. From the above it would be seen that the author of the tender in question has consciously and repeatedly used the expression “Category” before the word “Product”. Thus the use of the expression “Category” is not inadvertent or unintentional. Secondly the author has also repeatedly used the words “same or similar” in relation to not the product in question but in relation to the category of products to which “Tablet” belongs. The use of the plural i.e. “Products” and not “Product” also shows that the author was conscious that within the same or similar category of products there would be products other than “Tablets”. Pertinently the expression used is not “same products” or even “same Category Products”. It is “same or similar Category Products”. Firstly the use of the word “Category” shows that not just the same product but all products which fall in the same category which are covered. Thus if the expression used would have been “same Category Products” other products which fall in the same category as a tablet would be covered. The respondents have themselves enlisted other products which fall in the same category of products as tablets. They are “Slate tablets Convertible Tablets Hybrid Tablets Phablets Rugged tablets Tough Tablets Booklet Microsoft Surface Amazon Kindle Fire Surface Pro Tablet PC iPad iPad Air iPad Pro iPad Mini Samsung Galaxy Tab and ThinkPad.” However the respondent NVS has further enlarged the scope by using the expression “similar Category Products”. W.P.(C) 6676 2021 By using this expression all products which fall in similar categories to the category in which tablets fall are also covered. The expression “similar” does not mean “same”. Therefore a thing which is “similar” to another would not be the same as that other. In the present context the word “similar Category” has to be understood in relation to the nature and usage of the categories of products being compared. According to the Cambridge Dictionary the word “same” means “exactly like another or each other” whereas the word “similar” means “looking or being almost but not exactly the same”. Thus if it was indeed the intent of the Respondent to exclude similar category products from the category of products in which “Tablet” falls they need not have used the words “same or similar category products”. They would have simply said “same products” or “same category products” 30. Both smart mobile phones and tablets are electronic products. Both are used for audio visual reception transmission of data. Both have facility of running programmes and applications to perform varied tasks such as receiving and sending messages e mails surfing internet downloading content from the internet viewing audio visual content transmitting audio visual and the like. Both also have the facility to make audio calls through data networks though mobile phones use the mobile call network for regular calls. Both these products are sold and traded through the same channels. In the same shop which sells smart mobile phones one is likely to find tablets and vice versa. In fact the larger manufacturers and producers of electronic goods produce and sell both smart mobile phones and tablets under the same brand. There are bound to be differences since these two products are not “same”. They may not even belong to the “same category” W.P.(C) 6676 2021 of products. However merely because they are not “same” it does not mean that they do not belong to “similar category of products”. 31. The terms of tender must receive the natural and commonly understood interpretation which has been prevalent in the trade. What is prevalent in the trade has been demonstrated by the petitioner by reference to the 5 tenders floated by different Government PSUs in different parts of the country for same similar products. 32. Applying the said test can it be said that the respondent NVS could exclude smart mobile phones from the similar category of products as Tablets The answer is an emphatic “No”. The Clause intentionally has been worded loosely in order to have maximum competition amongst 33. At this stage we may also take note of the stand taken by the respondent NVS in their communication dated 01.07.2021 and their counter 34. The communication of the respondent NVS dated 01.07.2021 reads as affidavit. To “F.No. Acad 17014 3 2019 IT Date: 01 07 2621 Manvendra Singh M s Lava International Ltd. Sub: Technical Disqua1ification of Bidder Resoursys Telecom With reference your email dated 01.07.2021 regarding GeM Bid No GEM 2021 B l032762 dated 12 02 2021 the following may be considered: W.P.(C) 6676 2021 a. It is brought to your notice that the reason for disqualification is "not meeting the criterion for past performance” as per Clause 4of Bid Document “Past Performance: The bidder or its OEM themselves or through resellers should have supplied same or similar category products for 80%of bid quantity in atleast one of the last three financial years before the bid opening date to any central state govt. Org PSU Public Listed company. The Technical Bid evaluation committee has made recommendations after thoroughly going through all the tender documents submitted by M s Resoursys Telecom and M s Ashoka Buidcon b. As NVS is procuring tablets for learning management the technical evaluation committee has considered only tablet under similar category to ensure proven products. This issues with the approval of the competent authority. Sd Rajesh Chelle) Assistant CommissionerCopy through email to: 1. Chief Vigilance Officer ·NVS 2. P.A. to Commissioner NVS for information” emphasis supplied) In paragraph 10 of the counter affidavit filed on behalf of the respondent NVS dated 24.07.2021 the respondent NVS inter alia states “ that the Technical Evaluation Committee of the respondent had made the recommendation for considering only tablet under similar category after considering all the norms and guidelines in this regard and thus decided not to consider work orders of smart phones laptops Aadhar Kits Printers W.P.(C) 6676 2021 Power Bank etc. as same or similar category product of tablets under clause 4of bid documents. .” . 36. Thus it is evident to us that the Technical Evaluation Committee TEC) of the respondent NVS on its own decided to curtail the competition by narrowing the scope of the eligibility criteria by consideration of only tablets as falling under similar category and not to consider past supplies for other products like smart phones laptops etc which are covered under “same or similar category products” as tablets. We are not concerned with the exclusion of products like Aadhar kits printers power bank etc. in the facts and circumstances of the present case. The TEC of the respondent NVS may have been justified in not considering past experience turnover of supply of products like aadhar kits printers power banks etc. as falling under similar category products as that of the tablets. However the TEC of the respondent NVS could not have gone outside the scope of the tender to lay down its own criteria to determine the eligibility of the bidders. They were bound to adhere to and strictly comply with the terms and conditions stipulated in the tender floated by NVS. The decision taken by the TEC to exclude from consideration all other similar category products for the purpose of evaluating past performance of the bidders was wholly incompetent and beyond the authority of the TEC. 37. From the counter affidavit we also find that at various places the respondent has averred that tablets and smart mobile phones are not the same product or similar product. It appears to us that the respondent has forgotten the eligibility criteria set out in the NIT which is “same or similar category products” and not “same product” or even “similar products.” W.P.(C) 6676 2021 If that interpretation as given by the respondent NVS were to be accepted the word “similar category of products” becomes a surplusage which cannot be the intention attributed to the tender framing authority. 39. To arbitrarily and whimsically change the goalpost and determine what can and cannot be considered a “similar product” at the time of evaluation of bids disrupts the level playing field for bidders and extinguishes healthy competition. The respondents have argued that smartphones and tablets are separate products and there can be no doubt about it. This is a no brainer. However they don‟t say that these two products are not even falling under two different similar categories of 40. The restrictive interpretation given by the respondent NVS to the aforesaid tender conditions not borne out from the tender terms and conditions which would curb competition does not find favour with the Court in Public Interest. The whole purpose of issuing a tender is to invite maximum bids from bidders meeting the technical qualification so that the authority gets the most product services at the most competitive price. 41. The Supreme Court in Nabha Power Ltd. v. Punjab SPCL11 SCC 508 has laid down the „Penta test‟. The test of deemed interpretation has been taken from Penta test which reads as under: “49. We now proceed to apply the aforesaid principles which have evolved for interpreting the terms of a commercial contract in question. Parties indulging in commerce act in a commercial sense. It is this ground rule which is the basis of The MoorcockLR 14 PD 64 test of giving “business efficacy” to the transaction as must W.P.(C) 6676 2021 Shirlaw v. Southern Foundries have been intended at all events by both business parties. The development of law saw the “five condition test” for an implied condition to be read into the contract including the “business efficacy” test. It also sought to incorporate “the Officious Bystander Test” Ltd.Ltd. 2 KB 206 : 2 All ER 113 ]. This test has been set out in B.P. Refinery Proprietary Ltd. v. Shire of HastingsProprietary Ltd. v. Shire of Hastings 1977 UKPC 13 : 180 CLR 266 requiring the requisite conditions to be satisfied:reasonable and equitable necessary to give business efficacy to the contract it goes without saying i.e. the Officious Bystander Test capable of clear expression and must not contradict any express term of the contract. The same penta in Investors Compensation Scheme Ltd. v. West Bromwich Building Society1 WLR 896 : 1 All ER 98 and Attorney General of Belize v. Belize Telecom Ltd.1 WLR 1988 Needless to say that the application of these principles would not be to substitute this Court s own view of the presumed understanding of commercial terms by the parties if the terms are explicit in their expression. The explicit terms of a contract are always the final word with regard to the intention of the parties. The multi clause contract inter se the parties has thus to be understood and interpreted in a manner that any view on a particular clause of the contract should not do violence to another part of the contract. find reference also 72. We may however in the end extend a word of caution. It should certainly not be an endeavor of commercial courts to look to implied terms of contract. In the current day and age making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus normally a contract should be read as it W.P.(C) 6676 2021 reads as per its express terms. The implied terms is a concept which is necessitated only when the Penta test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case we have really only read the contract in the manner it reads. We have not really read into it any “implied term” but from the collection of clauses come to a conclusion as to what the contract says. The formula for energy charges to our mind was quite clear. We have only expounded it in accordance to its natural grammatical contour keeping in mind the nature of the contract.” emphasis supplied) 42. Similarly the respondent NVS could not have either “implied” a term in the Tender or given a restrictive meaning to the otherwise clear language of the tender. 43. Even if we were to assume for the sake of argument that there was lack of clarity in the tender conditions the Doctrine of Contra Proferentem would work against the respondents in the present case. In United India Insurance Co. Ltd. v. Orient TreasuresLtd 3 SCC 49 it was observed by the Hon‟ble Supreme Court that: “37. In Halsbury s Laws of Englandprinciple of contra proferentem rule is stated thus: “Contra proferentem rule. —Where there is ambiguity in the policy the court will apply the contra proferentem rule. Where a policy is produced by the insurers it is their business to see that precision and clarity are attained and if they fail to do so the ambiguity will be resolved by adopting the construction favorable to the insured. Similarly as regards language which emanates from the insured such as the language used in answer to questions in the proposal or in a slip a construction favorable to the insurers will prevail if the insured has created any ambiguity. This rule however only becomes operative where the words are truly ambiguous it is a rule for resolving W.P.(C) 6676 2021 that meaning to give effect ambiguity and it cannot be invoked with a view to creating a doubt. Therefore where the words used are free from ambiguity in the sense that fairly and reasonably construed they admit of only one meaning the rule has no application.” 39. It is a settled rule of interpretation that when the words of a statute are clear plain or unambiguous i.e. they are reasonably susceptible to only one meaning the courts are irrespective of consequences. In other words when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises for the Act speaks for itself. Equally well settled rule of interpretation is that whenever the NOTE is appended to the main section it is explanatory in nature to the main section and explains the true meaning of the main section and has to be read in the context of main section See G.P. Singh Principles of Statutory Interpretation 13th Edn. pp. 50 and 172). This analogy in our considered opinion equally applies while interpreting the words used in any contract.”44. The above judgment makes it explicit that ambiguity cannot be read into a condition clause when there exists none to make the Doctrine of Contra Proferentem applicable. Further even if such an ambiguity exists then it should be construed against the drafter of the tender. In the absence of ambiguity the plain and express meaning of the condition must be complied with. Invitation and Evaluation of a Tender is an austere matter. The process of evaluation of Bids submitted in response to a Tender is a serious exercise which the tender inviting authority TEC must undertake with all earnestness. Each and every word of a tender must be given a meaning and the TEC cannot evolve its own criteria to evaluate the eligibility of the bidders contrary to the terms and conditions of the tender. W.P.(C) 6676 2021 46. We may also observe that the endeavour of Mr. Venugopal who appears for Agmatel was to refer to several documents only to establish that “mobile smart phones” and “Tablets” are not the same products. As we have already observed we accept the position that they are not the same product. However they are products falling in similar categories of products. We therefore do not consider it necessary to either refer to or deal with all the documents referred to and relied upon by Mr. Venugopal. Moreover all the materials relied upon by Mr. Venugopal did not constitute the basis of the respondent NVS‟s decision making process. For that reason as well it is not material. 47. We are conscious of the scope of judicial scrutiny in tender matters. We are also conscious that the tender floating authority is best person to interpret the terms of the tender as they know what best is the requirement and how to achieve the same.6SCC 651) However the authorities cannot act arbitrarily whimsically and contrary to the terms and conditions of the tender. As noticed hereinabove the terms and conditions of the tender are clear. However even if the terms of the tender are unclear and ambiguous can it be left to the option of the tender floating authority to interpret it in a manner which is contrary to their plain meaning The answer is “No”. In view of the matter we allow this petition and quash the Technical disqualification of the petitioner in respect of the tender in question. We hold that the rejection of the technical bid of the petitioner is unreasonable and arbitrary. We hold that the respondent NVS cannot exclude from consideration the past performance of the petitioner in respect of “same or similar category Products” as Tablets and mobile smart phones fall in the W.P.(C) 6676 2021 similar category products of the category to which Tablets belong. Accordingly we direct the respondent NVS to process the technical bid of the petitioner and to proceed thereafter in accordance with law. VIPIN SANGHI J) SEPTEMBER 27 2021 „ms‟ JASMEET SINGH J) W.P.(C) 6676 2021 |
Any Metropolitan Magistrate or Judicial Magistrate may record any confession in the course of an investigation any time before the commencement of the inquiry- Delhi High Court | Any Metropolitan Magistrate or Judicial Magistrate may record any confession in the course of an investigation any time before the commencement of the inquiry- Delhi High Court Under Section 164 of CRPC any magistrate can record the confessional statement either before the course of investigation of during the course and it is well versed under law that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force , the power levied is misused by the authority in some scenarios which was dealt in the YASHPAL SINGH VS STATE (BAIL APPLN.4089/2021), the hon’ble Delhi high headed by the single bench of HON’BLE MS. JUSTICE ANU MALHOTRA The facts of the case are as follows ,the present application seeks the grant of anticipatory bail in relation under Section 308 /376 of the Indian Penal Code, 1860 submitting to the effect that the allegations levelled against the applicant are wholly false, that the prosecutrix indulged in sexual relations with the applicant despite being a married woman and that it was on the insistence of the prosecutrix that she became pregnant .The prosecutrix started making demands of money from the, to the tune of Rs.15 lakhs and also stated that if the applicant did not pay the amount to her, she would implicate him in a false case. The learned counsel for the petitioner stated that The applicant submits that the prosecutrix had been building pressure on him to meet her and when he denied meeting her illegitimate and illegal demands, she went to the Police Station, Sunlight Colony and started calling the applicant on his mobile phone from outside of the police station and that when the applicant denied meeting her registered a complaint and started demanding Rs.15 Lakhs threatening that otherwise she would file a false case against him and he will lose his government job. The learned counsel for the respondent submitted that he prosecutrix submitted that she had been giving repeated information to the Investigation Officers of the case it that persons known to her have been receiving threats in relation to the present case as given on behalf of the applicant. The prosecutrix further submitted whilst opposing the bail application that the applicant would harass her and had been torturing her repeatedly ,as to why the applicant had been informing the persons known to the prosecutrix that the child belonged to the applicant, stated that the applicant had been stating that he would teach her a lesson and would also teach her spouse a lesson stating that after he got bail. The Hon’ble High court opined “that As has already been observed hereinabove, through the FIR and through the statement under Section 164 of the CrPC, 1973 of the prosecutrix, there is no mention in the statement of the prosecutrix of the applicant and the prosecutrix having checked in any hotel as put forth by the status report appropriate to allow the applicant to be released on anticipatory bail, hence the application is disposed.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 02.12.2021 Date of decision: 24.12.2021 BAIL APPLN. 4089 2021 YASHPAL SINGH …. Petitioner Through: Ms.Anu Narula Advocate with Mr.Aman Usman Advocate. STATE …. Respondent Through: Mr.Mukesh Kumar APP for State with SI Nikhil PS Tigri. HON BLE MS. JUSTICE ANU MALHOTRA ANU MALHOTRA J The applicant vide the present application seeks the grant of anticipatory bail in relation to FIR No.413 2021 PS Tigri under Sections 376 328 506 of the Indian Penal Code 1860 submitting to the effect that the allegations levelled against the applicant are wholly false and that the relations between the applicant and the prosecutrix if any were wholly consensual that the prosecutrix indulged in sexual relations with the applicant despite being a married woman and that it was on the insistence of the prosecutrix that she became pregnant with the applicant. The applicant has further submitted that after the pregnancy the prosecutrix started making demands of money from the applicant Bail.Appl.No.4089 2021 to the tune of Rs.15 lakhs and also stated that if the applicant did not pay the amount to her she would implicate him in a false case and get him removed from his Government job. Notice of the application was issued to the State with directions to the State to submit the copy of the statement under Section 164 of the Cr.P.C. 1973 of the prosecutrix. The prosecutrix too joined the proceedings through Video Conferencing on 02.12.2021 and made her submissions. As per the status report submitted by the State dated 21.11.2021 under the signatures of Inspector Rajnish Kumar SHO PS Tigri a complaint was received at PS Tigri from the complainant in relation to a sexual assault with a lady named ‘D’ wife of ‘X’ and in her complaint she alleged that the applicant working in PNB as a Clerk had sexually assaulted her and that she was three months in the family way. As per the prosecution version the complainant had stated through her complaint that in 2018 she went to PNB Khanpur due to some account related problems where the complainant met the applicant who provided his mobile number for future reference and thereafter they frequently called each other and in 2018 the applicant accused came to the complainant s house for collection of some documents and offered some sweets to the complainant whereafter the complainant became unconscious and when she regained her consciousness she found herself nude and found the applicant accused lying with her on the bed and watching a video on Bail.Appl.No.4089 2021 his mobile phone and threatened the complainant that if she told anything to anyone he would kill her husband. As per the status report put forth in March 2021 according to the complainant she and the applicant left their homes and started living together at Mayur Vihar in a rented accommodation and the applicant accused had stated that he would take a divorce and would marry her soon but now since the complainant had become pregnant the applicant accused was not responding to her calls and was asking her to abort her threemonths pregnancy. As per the said status report during the course of the investigation on 16 03 2021 the medical examination of prosecutrix was got conducted and during the medical examination no exhibits were seized as the incident was very old and that the UPT test of the prosecutrix was conducted which indicated that she was three months in the family way. The statement under Section 164 of the Cr.P.C. 1973 of the prosecutrix was also recorded as submitted by the is further submitted the status report dated 21.11.2021 that during the course of the investigation conducted at PNB Khanpur New Delhi it was found that account no. 1514000100989327 belonging to the complainant ‘D’ was opened on 12 09 2012 and that the KYC of the complainant s account was done at the time of opening of the same. Through the said status report dated 21.11.2021 the State has further stated to the effect that the hotel records regarding the stay of Bail.Appl.No.4089 2021 the complainant and the applicant accused were collected from Hotel Vinayak Inn Pahad Ganj and according to the Hotel records in December 2018 the complainant and the applicant accused went to the hotel for one day and the hotel records were thus collected by the Investigating Agency. It has also been stated through the said status report that during investigation a notice under Section 91 of the Cr.P.C. 1973 was also sent to the Reader to the SHO PS Sunlight Colony to provide the details about the complaint which was filed by the complainant at the police station qua which it was informed that in September 2021 there was no complaint that had been filed by the complainant at that police station and consequentially the application filed by the applicant seeking bail was dismissed as withdrawn as there was no complaint pending against him at PS Sunlight Colony. 10. The status report further indicates to the effect that during investigation it was learnt that on 18.03.2021 ‘R’ the husband of the complainant came to the police station and reported that his wife was missing and a missing report was lodged vide DD No 85A dated 18 03 2021 and that on 19 03 2021 the complainant came to the police station alongwith with her counsel and gave her written complaint against her husband regarding domestic violence and also stated that she was not kidnapped by anyone and that then she was residing with her friend though she did not disclose the name of the friend and stated further that she was not willing to live with her husband as a consequence of which the missing complaint was filed. Bail.Appl.No.4089 2021 11. The State submitted the copy of the MLC of the prosecutrix dated 21.10.2021 wherein in relation to the sexual assault history it was mentioned to the effect: “As per victim she is married x 10 years. H O cohabit with husband till March 2021. Separated from husband at present. Presently staying with Mr. Yashpal Singh friend). Last intercourse 20 08 202118 SCC 191 and “Bhushan Lal Khanna Vs. StateDLT 173 to contend to the effect that the applicant Bail.Appl.No.4089 2021 be released on anticipatory bail in the instant case in the event of his 21. Vide the FIR in the instant case lodged on 22.10.2021 pursuant to the prosecutrix having gone to the police station on 21.10.2021 where a written complaint was signed by her the contents of which indicate the acquaintance between the applicant and the prosecutrix from 2016 onwards whereafter the applicant is stated to have helped the complainant in getting her account reopened in 2018 for which the applicant had gone to the house of the complainant in the year 2018 to take her ID proof and signatures for the reopening of her bank account when the applicant had allegedly brought some stuff to eat and after having the same the complainant became unconscious and after she woke up she found herself nude and found the applicant in bed with her watching a video on the mobile phone which he had made of her and when the prosecutrix confronted him as to what was all that the applicant told her that she did not need to say anything to anyone and that her videos were in his mobile and in some days he would divorce his wife and would marry her and that she would also have to divorce her husband. 22. As per the complaint made by the prosecutrix even after that day the applicant started visiting her house despite her refusal and kept threatening her that he would make the video viral and thereafter had also told the prosecutrix that he would be transferred from Delhi and she should accompany him and should not tell her husband or else he would kill her husband and would bring her to disrepute whereafter the applicant allegedly told her that he wanted a child and Bail.Appl.No.4089 2021 took her to the doctor and got her tests done and got his own tests done brought her a medicine on which her husband became suspicious and checked from the doctor and learnt that the applicant had given his name as the husband of the prosecutrix and she did not tell anything to her husband as the applicant had threatened her not to tell anything to anyone and that she informed the applicant that her husband had come to know his name and he was coming home and she would tell him everything on which the applicant told her that he would come before her husband came and would take her and asked her to come out of the house and to accompany him or else it would not be good for her and for her husband as he had her video and on being so threatened the prosecutrix was compelled to leave her house as on 18.03.2021 the applicant came from his office at 2.00 PM and kept repeating that she should come out of the house and in the event of refusal to do so he told her that he would come into the house and would humiliate her in the lane and when her husband at 6.00 PM went to the terrace the applicant came on his bike beneath the house and took her away from the house to the house of his acquaintance at Shadipur and got her mobile closed and on the next date i.e. on 19.03.2021 he took her to the Tis Hazari Courts Delhi and told her to get a false complaint typed and sent her with the lawyer to the police station to say that she had left the matrimonial home of her own whereafter the missing report was lodged by her husband on 18.03.2021 and on 19.03.2021 the applicant took her to the OYO Hotel where he took a room on rent and kept her there and on 20.03.2021 the applicant took another room on rent and from Bail.Appl.No.4089 2021 24.03.2021 the applicant also started living with her and got a false agreement executed in her name and had sexual relations with her everyday for almost a month inter alia with it having been averred in the complaint that on 19.04.2021 it was her sister’s wedding which she was allowed to attend by the applicant who also stated that she should say there that she was troubled by her spouse and of her own had left her matrimonial home and was living separately from her husband and on 21.04.2021 the applicant brought her back to Bijnor and on 17.05.2021 the applicant vacated the room at Lajpat Nagar because the mother of the prosecutrix had come there to take her and because the applicant had threatened her that if she went everyone would be killed and thus she did not goand the applicant with the assistance of the son of his Tau took a room on rent at Mandawali whereafter in as much as the husband of the prosecutrix had come to know of the house where she was living at Mandawali and the prosecutrix between 13.07.2021 to 17.08.2021 continued to stay with the applicant on 13.07.2021 the applicant and the prosecutrix shifted again to Mayur Vihar whereafter the applicant had left stating that he would live with a person with whom he works because he did not want the husband of the prosecutrix to know of the matter and he would keep visiting her of his own and on 31.08.2021 when the applicant learnt of her pregnancy he asked her to get her pregnancy aborted and when she refused to do so the applicant ran away from Mayur Vihar and threatened to kill her if she did not get the child aborted and lastly on 07.09.2021 the applicant again went to her and asked her to get the child aborted and if she did not she would Bail.Appl.No.4089 2021 have to live alone and thus out of fear she had vacated the house at Mayur Vihar on 10.09.2021 without the applicant whereafter the applicant telephoned her and told her that she should tell him where she was and if she did not do so he would get her falsely implicated in a case of blackmailing and he repeatedly asked her to get the child aborted on which she made the complaint. 23. Through the statement under Section 164 of the Cr.P.C. 1973 of the prosecutrix recorded on 22.10.2021 which is just the next day after the complaint given by the prosecutrix to the police it was stated by the prosecutrix that she had met the applicant in 2013 and he used to work in the PNB where they had exchanged their numbers and at the behest of the applicant she had got her mother’s account opened and there used to be some conversation between them whereafter in 2016 she again met the applicant in the same PNB Branch and they again exchanged their numbers that she was working as a Security Guard in a Mall at that time and the applicant used to meet her at the Mall and they used to have conversations sometimes and the applicant used to help her with her bank work and in 2018 she had to get her account reopened and was not well and thus the applicant had come to her house as he used to live nearby and he brought something for her to eat on eating which she became unconscious and the applicant raped her and made a video of her and showed it to her and blackmailed her and thereafter kept meeting her after that day and once or twice he took her to a OYO and their constant meetings continued thereafter and whenever the applicant met her he had Bail.Appl.No.4089 2021 physical relations with her he used to come to her house also and this continued prior to 2020 and during the lockdown they used to have conversation on the phone sometimes and from July 2020 the applicant again started coming to her house and this continued till March 2021 and on 15.03.2021 the applicant took her with him from her house and at one night they stayed at Shadipur at the applicant’s friend’s house and on 19.03.2021 the applicant took her to the OYO Karol Bagh and on 20.03.2021 took her to a room at Lajpat Nagar and they started living together from 24.03.2021 and lived together till 17.05.2021 and then went to Mandawali and then Mayur Vihar Phase III during which she became pregnant and on learning this the applicant left her in September 2021 and is now defaming her and that he had told her that he would divorce his wife and would marry her but the prosecutrix had stated that she was not agreeable to the same. 24. Through her statement she further stated that the applicant had made her video and was blackmailing her on the basis of the same and had repeatedly raped her and had taken advantage of her. 25. There are certain photographs that the applicant has placed on record as Annexure A3 to the petition and the said photographs do not show any constraint on the feelings of the prosecutrix towards the applicant and do not indicate prima facie that those photographs were taken under any fear of any video being made viral. Whereas the averments in the FIR are to the effect that the applicant did not marry her after she was in the family way and left her thereafter through her Bail.Appl.No.4089 2021 statement under Section 164 of the Cr.P.C. 1973 dated 22.10.2021 a day after the FIR was lodged on her complaint the prosecutrix has stated that though the applicant told her that he would divorce his wife and marry her she was not agreeable to the same. The said averments are contrary to each other prima facie through the statement which forms the complaint on the basis of which the FIR was registered and her statement a day later under Section 164 of the Cr.P.C. 1973. 26. Furthermore the statement under Section 164 of the Cr.P.C. 1973 of the prosecutrix which is on oath prima facie indicates the repeated relations between the applicant and the prosecutrix even after the alleged incident when the applicant had come to her house had given her something to eat and she had then allegedly become unconscious whereas according to her complaint the applicant was lying in bed with the prosecutrix and the prosecutrix was nude whereas through her statement under Section 164 of the Cr.P.C. 1973 after she had become unconscious the applicant had raped her and had made her video and had blackmailed her which statement under Section 164 of the Cr.P.C. 1973 also states that the applicant thereafter kept meeting her and even took her to the OYO room once or twice and thereafter they had constant meetings and every time the applicant met her he had sexual relations with her he used to visit her house and this went on in the year 2020 and after the lockdown commenced again in July 2020 and the applicant even took her away from her house on 15.03.2021 and kept her at different locations that the prosecutrix did not complain to the police despite her being Bail.Appl.No.4089 2021 repeatedly moving from one place to another with the applicant coupled with the factum that on the missing complaint lodged by her husband vide DD No.85A dated 18.03.2021 on 19.03.2021 the complainant had gone to the police station along with her counsel and gave a written complaint against her husband regarding the domestic violence and stated that she was not kidnapped by anyone and lived with her friend and did not disclose the name of her friend and that she was not willing to live with her husband as a consequence of which the missing complaint was filed is an aspect which speaks volumes prima facie against the alleged factum of forcible relations between the applicant and the prosecutrix. 27. The status report dated 21.11.2021 submitted under the signatures of the SHO PS Tigri also that during investigation hotel records regarding the stay of the complainant and the applicant accused were collected from Hotel Vinayak Inn Pahad Ganj and according to the Hotel records in December 2018 the complainant and the applicant accused went to the hotel for one day and qua the prosecutrix having accompanied the applicant to a Hotel in 2018 there is not a word in the statement which forms the complaint nor in the statement of the prosecutrix under Section 164 of the Cr.P.C. 1973. 28. The factum that the prosecutrix who is aged 30 years even in the sexual assault history at the AIIMS had stated that she was married for 10 years cohabited with her husband till March 2021 and was separated from her husband on the date of her Bail.Appl.No.4089 2021 i.e. 21.10.2021 and that she was living with Mr.Yashpal Singh i.e. applicant herein with her last intercourse on 20.08.2021 i.e. two months prior from 21.10.2021 coupled with the factum that the prosecutrix who was found to be in the family way wanted to continue her pregnancy and was not inclined for a medical termination of her pregnancy are also aspects which defy reason if relations between the applicant and the prosecutrix were not consensual. 29. The prosecutrix in reply to a specific Court query on 02.12.2021 in relation to this aspect had stated that there was a male doctor at AIIMS and she had not told him as to how she stayed with the applicant and did not tell him that he was a friend and stated that she had told the doctor that she wanted to continue with the pregnancy and was not willing for the MTP though the pregnancy was not consensual in as much as the child was also a part of her body and its termination would affect her she does not want the termination of the 30. Significantly though the prosecutrix whilst opposing the bail application of the applicant submitted that the release of the applicant on bail would result into the applicant harassing her as he had been torturing her repeatedly inter alia submitted the that she had been giving repeated information to the Investigation Officers of the case i.e. to the Investigation Officer in the present case as well as to the Investigating Officer of the application before the learned Trial Court that persons known to her have been receiving threats in relation to the Bail.Appl.No.4089 2021 present case on behalf of the applicant qua which the Investigation Officer of the case SI Shalu in reply to a specific Court query submitted that no written complaint had been given to her by the prosecutrix though the Investigation Officer had advised her to give the same if she so wanted. The Investigation Officer inter alia stated that the complaint that the prosecutrix had made to her was to the effect that there were telephone calls that were received by the relatives of the prosecutrix from the side of the applicant that the child conceived by the prosecutrix was that of the applicant and not of her spouse. 31. The prosecutrix further in reply to a specific Court query submitted that the applicant had been stating that he would teach a lesson to her and her spouse after he gets bail. 32. The factum that the prosecutrix has stated that she wants to continue with the pregnancy coupled with her submission that the applicant is informing the relatives of the prosecutrix that the child is that of the applicant with similar allegations levelled against the applicant by the prosecutrix coupled with the repeated physical relations between the prosecutrix and the applicant from 2018 onwards and the photographs placed on record as Annexure A3 which do not depict any fear of any kind on the face of the prosecutrix coupled with the factum that the prosecutrix is a married lady aged 30 years and has been the acquaintance of the applicant since the year 2013 it is essential to advert to the observations in “State Vs. Sandeep”a verdict of this Court in CRL.L.P.532 2019 dated Bail.Appl.No.4089 2021 25.09.2019 with specific reference to observations in paragraph 21 thereof which reads to the effect: “21. Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In certain cases a promise to marry may induce a party to agree to establish sexual relations even though such party does not desire to consent to the same. Such inducement in a given moment may elicit consent even though the concerned party may want to say no. Such false inducement given with the intention to exploit the other party would constitute an offence. However it is difficult to accept that continuing with an intimate relationship which also involves engaging in sexual activity over a significant period of time is induced and involuntary merely on the assertion that the other party has expressed its intention to get 33. The factum that through the statement under Section 164 of the Cr.P.C. 1973 the prosecutrix has stated that she was not agreeable to the applicant divorcing his wife and marrying her and the continuation of the pregnancy by the prosecutrix prima facie lend credence to the contentions raised by the applicant that relations between the applicant that the prosecutrix even after the first alleged incident of rape which too is refuted continued to be without any duress or force. 34. As has already been observed hereinabove through the FIR and through the statement under Section 164 of the Cr.P.C. 1973 of the prosecutrix there is no mention in the statement of the prosecutrix of the applicant and the prosecutrix having checked in any hotel as put forth by the status report. In the circumstances it is considered Bail.Appl.No.4089 2021 appropriate to allow the applicant to be released on anticipatory bail in the event of arrest in the facts and circumstances of the case subject to his filing a bail bond in the sum of Rs.1 00 000 with one surety of the like amount to the satisfaction of the learned Trial Court subject to further conditions to the applicant to the effect that: he shall not leave the country under any circumstances he shall keep his mobile phone on at all times he shall drop a PIN on the google map to ensure that his location is available to the Investigation Officer he shall make no attempt to intimidate the prosecution witnesses in any manner he shall commit no offence whatsoever during the period that he is on anticipatory bail in the instant case. 35. The application is disposed of accordingly. 36. Nothing stated hereinabove shall amount to any expression on the merits or demerits of the proceedings before the learned Trial Court in relation to the charge sheet if any filed in the instant case. DECEMBER 24th 2021 ‘Neha Chopra’ ANU MALHOTRA J. Bail.Appl.No.4089 2021 |
Due to various Physical Injuries, the petitioner’s second attempt for bail got accepted by the Court: High Court Of Patna | The Petitioner applied for the second time for the bail. He was accused of theft of various things from the informant’s shop. Due to the physical health of the petitioner, the court considered the matter this time and granted bail, and accepted the appeal. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Dhananjay Kumar v. The State of Bihar[Criminal Miscellaneous No. 30616 of 2021].
The facts of the case were that the petitioner is in custody in connection with Case instituted under Sections 461 and 379 of the Indian Penal Code. The earlier prayer was rejected by the Court and this is the second attempt for bail. The petitioner is alleged that he had stolen the laptop, camera, Wi-Fi, cash, and important documents from the shop of the informant. Learned counsel for the petitioner submitted that the Court has already considered the merits as has been noted in the last order of rejection. It was further added that there was no document as such produced and presented by the informant to establish that the articles which were recovered from the petitioner belonged to him as upon being asked for the papers, he had stated that he had burnt the same.
Learned counsel submitted that the petitioner is suffering from various diseases and his left leg and right hand were fractured in a motorcycle accident and his left eye was also injured and since then he has lost vision in one eye. it was submitted that the cases relate to petty
theft and ancillary allegations and there is no major allegation of committing a crime that is a threat to society as a large or would damage society in general. Further, learned counsel submitted that the Court may impose strict conditions on the petitioner to ensure that he does not commit any crime again.
The Learned Additional Public Prosecutor submitted that the matter has already been considered under the light of all facts and circumstances and hence there are no fresh grounds to be shown for reconsideration.
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 persuaded to allow the prayer.” The bail was granted to the petitioner on furnishing the bail bonds and required documents. An undertaking was to be signed stating that the petitioner shall not indulge in any illegal/criminal activity and any violation of the terms shall lead to cancellation of bail bonds. The petition was disposed of on the mentioned terms and conditions.
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Judgment Reviewed By Nimisha Dublish
The facts of the case were that the petitioner is in custody in connection with Case instituted under Sections 461 and 379 of the Indian Penal Code. The earlier prayer was rejected by the Court and this is the second attempt for bail. The petitioner is alleged that he had stolen the laptop, camera, Wi-Fi, cash, and important documents from the shop of the informant. Learned counsel for the petitioner submitted that the Court has already considered the merits as has been noted in the last order of rejection. It was further added that there was no document as such produced and presented by the informant to establish that the articles which were recovered from the petitioner belonged to him as upon being asked for the papers, he had stated that he had burnt the same.
Learned counsel submitted that the petitioner is suffering from various diseases and his left leg and right hand were fractured in a motorcycle accident and his left eye was also injured and since then he has lost vision in one eye. it was submitted that the cases relate to petty
theft and ancillary allegations and there is no major allegation of committing a crime that is a threat to society as a large or would damage society in general. Further, learned counsel submitted that the Court may impose strict conditions on the petitioner to ensure that he does not commit any crime again.
The Learned Additional Public Prosecutor submitted that the matter has already been considered under the light of all facts and circumstances and hence there are no fresh grounds to be shown for reconsideration.
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 persuaded to allow the prayer.” The bail was granted to the petitioner on furnishing the bail bonds and required documents. An undertaking was to be signed stating that the petitioner shall not indulge in any illegal/criminal activity and any violation of the terms shall lead to cancellation of bail bonds. The petition was disposed of on the mentioned terms and conditions.
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Judgment Reviewed By Nimisha Dublish
Learned counsel submitted that the petitioner is suffering from various diseases and his left leg and right hand were fractured in a motorcycle accident and his left eye was also injured and since then he has lost vision in one eye. it was submitted that the cases relate to petty theft and ancillary allegations and there is no major allegation of committing a crime that is a threat to society as a large or would damage society in general. Further, learned counsel submitted that the Court may impose strict conditions on the petitioner to ensure that he does not commit any crime again.
The Learned Additional Public Prosecutor submitted that the matter has already been considered under the light of all facts and circumstances and hence there are no fresh grounds to be shown for reconsideration.
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 persuaded to allow the prayer.” The bail was granted to the petitioner on furnishing the bail bonds and required documents. An undertaking was to be signed stating that the petitioner shall not indulge in any illegal/criminal activity and any violation of the terms shall lead to cancellation of bail bonds. The petition was disposed of on the mentioned terms and conditions.
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Judgment Reviewed By Nimisha Dublish
The Learned Additional Public Prosecutor submitted that the matter has already been considered under the light of all facts and circumstances and hence there are no fresh grounds to be shown for reconsideration.
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 persuaded to allow the prayer.” The bail was granted to the petitioner on furnishing the bail bonds and required documents. An undertaking was to be signed stating that the petitioner shall not indulge in any illegal/criminal activity and any violation of the terms shall lead to cancellation of bail bonds. The petition was disposed of on the mentioned terms and conditions.
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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 persuaded to allow the prayer.” The bail was granted to the petitioner on furnishing the bail bonds and required documents. An undertaking was to be signed stating that the petitioner shall not indulge in any illegal/criminal activity and any violation of the terms shall lead to cancellation of bail bonds. The petition was disposed of on the mentioned terms and conditions. Click Here To Read The Judgment | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 306121 Arising Out of PS. Case No. 792 Year 2019 Thana KHAGARIA District Khagaria Dhananjay Kumar @ Dhanannjay Kumar aged about 20 years Male Son of Birendra Singh Resident of Village Amni PS Mansi District Khagaria The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Binod Kumar Advocate Mr. Mustaque Alam APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 18 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Binod Kumar learned counsel for the petitioner and Mr. Md. Mustaque Alam learned Additional Public Prosecutorfor the State 3. The petitioner is in custody in connection with KhagariaPS Case No. 7919 dated 23.10.2019 instituted under Sections 461 and 379 of the Indian Penal Code 4. This is the second attempt for bail by the petitioner as earlier such prayer was rejected by judgment and order dated 05.01.2021 passed in Cr. Misc. No. 322220 5. The allegation against the petitioner is that he had stolen the laptop camera wi fi cash and important documents from the shop of the informant Patna High Court CR. MISC. No.306121 dt.18 08 2021 6. Learned counsel for the petitioner submitted that the Court has already considered the merits as has been noted in the last order of rejection. However it was submitted that the Court may consider one aspect i.e. there was no document produced by the informant to establish that the articles which were recovered from the petitioner belonged to him as upon being asked for the papers he had stated that he had burnt the same. Learned counsel submitted that the petitioner is suffering from various diseases and his left leg and right hand was fractured in a motorcycle accident and his left eye was also injured and since then he has lost vision in one eye. Learned counsel submitted that the petitioner is in custody since 17.02.2020. It was submitted that though the petitioner has been made accused in seven other cases but all such implication has been after the police took him on remand in Khagaria PS Case No. 520 which is the case related to the present case. Further it was submitted that the cases relate to petty theft and ancillary allegations and there is no major allegation of committing a crime which is a threat to society as a large or would damage the society in general. Further learned counsel submitted that the Court may impose strict conditions on the petitioner to ensure that he does not commit any crime again Patna High Court CR. MISC. No.306121 dt.18 08 2021 7. Learned APP submitted that the Court has already considered and rejected the matter on merits and no fresh grounds have been shown for reconsideration 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is persuaded to allow the prayer 9. Accordingly let the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 PS Case No. 7919 subject to the conditionsthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses andthe petitioner shall appear before the SHO of his local police station every Sunday morning at 11:00 AM. Any violation of the terms and conditions of the bonds or the undertaking or failure to appear before the SHO every Sunday at 11:00 AM shall lead to cancellation of his bail bonds. The petitioner shall Patna High Court CR. MISC. No.306121 dt.18 08 2021 cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 11. The petition stands disposed of in the (Ahsanuddin Amanullah J |
Chargesheet that do not contain any offences punishable under sections of IPC are taken to trial, it amounts to abuse of the Court process: Karnataka High Court | The disputes existed between the developer and apartment owners in regard to issues related to parking areas. Such an opinion was held by The Hon’ble High Court of Karnataka before The Hon’ble Mr. Justice Sreenivas Harish Kumar in the matter of Praneth and Ors Vs. State of Karnataka and Anr [CP NO. 3970/2019]. The facts of the case were associated with a criminal petition filed under Section 482 of Cr.P.C to quash the proceedings on the file of A.C.J.M in Bengaluru Rural District. In connection to the offences punishable under Sections 341, 504 and 506 with Section 34 of IPC, the petitioners no 1 to 5 were accused and had to face trials. It was submitted by respondent no 2 that the petitioners abused and threatened him. It seemed that petitioner 1 was the developers and other petitioners were his workers. It was complained by the petitioner that respondent 2 had removed the parking boards in cellar portions and when petitioner 2 questioned him, he was threatened to be killed by respondent 2. It was also reported that an injunction suit was also filed by petitioner 1 against some of the residents of the apartment. FIR was registered based on the complaints made by the petitioner 2. It was found that relating to the issue of parking area and payment of maintenance charges, the dispute between the developers and apartment owners rose. The Hon’ble Court examining all the submissions stated that no offences under the said Sections were punishable according to the FIR. As no offences against the petitioners were forthcoming, then the proceedings against the petitioners can be quashed. Thus, The Hon’ble Court ruled out that “The petition is allowed. Proceedings against C.C. No. 466/2019 pending on the file of the Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, are hereby quashed, insofar as the petitioners are concerned.” | IN THE HIGH COURT OF KARNATAKA AT BENGAL URU DATED THIS THE 08 T H DAY OF NOVEMBER 2021 BEFOR E THE HON’BLE MR . JUSTICE SREEN IVAS HARISH KUMAR CRIMINAL PETITION NO.3970 OF 2019 Praneth S o D.V.Sekhar Aged about 30 years Proprietor M s Sekhar Developers Having its office at #E218 BM 304 Yamunotri Apartment G.M.Palya Bengaluru 560075. 2. Manishankar S o D.Ganesh Babu Aged about 35 years R at Sekhar Hyde Park Immadihalli Whitefield Bengaluru East Taluk 560066. Bharath S o N.Prabakar Aged about 26 years R at 37 2 Whitefield Near Globel School KRS Garden Channsandra Praveen S o Venkataramanappa Aged about 28 years R at No.101 3 r d Main Road Basavanapura Main Road HAL Bengaluru. …Petitioners 2 :: Vasuki S o Seetharam Aged about 24 years R at No.32 First Floor A.R.Homes Opp. to SBI Subbaiah Layout Branch Doddanekundi Marathalli State of Karnataka By Whitefield Police Station Represented by Public Prosecutor High Court of Karnataka Bengaluru 560066. By Sri Rajashekar S. Advocate) Sujeeth C Pani R at Flat No. C 305 Sekhar Hyde Park Immadihalli Whitefield Bengaluru East Taluk 560066. By Sri Rohith B.J. HCGP for R1 R2 served) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings C.C.No.466 2019 on file of the A.C.J.M. Benglauru Rural District for the offences punishable under Sections 341 504 506 read with 34 of IPC. This Criminal Petition coming on for admission this day the Court made the following: 3 :: Heard Sri Rajashekar S learned counsel for the petitioners and learned High Court Government Pleader for respondent No.1 State. Respondent No.2 has been served with notice but there is no representation on his behalf. This is a petition filed under Section 482 of Cr.P.C. for quashing the proceedings C.C.No.466 2019 on the file of the Additional Chief Judicial Magistrate Bengaluru Rural District Bengaluru. The petitioners being accused No.1 to 5 in the said proceedings are facing trial in connection with the offences punishable under Sections 341 504 and 506 read with Section 34 of The second respondent lodged an FIR with the police on 18.02.2018 alleging that the first petitioner and others abused and threatened him of dire consequences. IPC. 4 :: It appears that the first petitioner is the developer of the apartment namely Sekhar Hydepark and that the petitioners 2 to 5 are the first petitioner’s workers. On 19.02.2018 the second petitioner made a complaint against the second respondent to the police stating that the respondent and others parking boards the cellar portion of apartment and when they were questioned the second petitioner was threatened to be killed. Similarly one Madhusudhan Naidu the staff member of the first petitioner made a complaint to the police against the second respondent and others in regard to operating STP unit in the apartment. Based on the complaints made by the second petitioner and one Madhusudhana Naidu FIRs were registered and after investigation charge sheets also came to be filed. The first petitioner has also filed a suit against some of the 5 :: residents of the said apartment for permanent injunction and the said suit is still pending. If the entire facts and circumstances are analyzed it becomes clear that the dispute exists between the developer and the apartment owners in regard to some issues probably relating to of parking and payment maintenance charges. Given a plain reading to the FIR registered against the petitioners and the charge sheets filed thereon it can be very well said that the contents of the charge sheet do not constitute any offences punishable under Sections 341 504 and 506 read with Section 34 of IPC. What appears is just a common quarrel. If a case of this type is taken to trial it amounts to abuse of process of Court. Since no offence forthcoming against the petitioners I am of the 6 :: petitioners can be quashed and hence following: Petition is allowed. pending on the file of the Additional Chief Judicial Magistrate Bengaluru Rural District Bengaluru are hereby quashed insofar as the petitioners are concerned. Sd JUDGE Kmv |
If Court constituted committee recommends promotion retrospectively it must respected : Jammu and Kashmir High Court | The Corporation is free to pass orders as to the petitioner’s entitlement or otherwise to the Supervisor’s grade, as warranted under law, after complying with the principles of Natural Justice. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA in the matter of Ravinder Kumar Bhan V. Ravinder Kumar Bhan [SWP No. 1966/2011], dealt with an issue where the petitioner filed a challenging an order, vide which his claim for Supervisor’s grade has been rejected. his case that he was adjusted as a Supervisor in the P.P. Division of the Distribution and Sales of Pesticides/Fungicides Wing of the Corporation and for the last 26 years, he is performing his duties as Supervisor. Although, similarly situated persons have been granted the grade of Supervisor, but the same is denied to him. In their objections, it was submitted by the respondents that petitioner was promoted to the post of Supervisor after the recommendations of Grievance Committee constituted by the Corporation, but the order was stayed on a petition filed by his senior colleagues. These senior colleagues have approached the Corporation to settle their cases, and have also withdrawn their petition. The order was rescinded only to consider the promotion cases of all the aggrieved senior employees as Supervisors. Counsel for the petitioner submits that in compliance report filed on behalf of the Corporation in contempt petition, the respondents have admitted that petitioner was entitled to the promotion as Supervisor retrospectively. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held order dated 20.08.2011 is quashed and that the petitioner is entitled to the grade and other benefits of the post of Supervisor retrospectively, in terms of the recommendations of the Committee constituted for settling the case of the petitioner. Click here to view judgement Judgement reviewed by – Vaishnavi Raman | SWP No. 1966 2011 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Pronounced on: 08.06.2020 Ravinder Kumar Bhan ….Petitioner(s) Through: Petitioner present in person. State of J&K and others .…Respondent(s) Through: None CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE 01. The petitioner was working as a Supervisor in Pesticides Distribution Wing of the Jammu and Kashmir State Agro Industries Development Corporation and was placed in the pay scale of Rs. 1350 50 1500 EB 75 2400 vide order No. Agro Adm CJAIDCL dated 06.12.1996. This order was challenged by Mohammad Sami Jan Ved Prakash Chowdhary Mohammad Sultan Mir and Mohd. Yousuf Dar in a writ petition bearing SWP No. 5578 1996. On the assurance given by respondents Corporation that they would consider the matter afresh this petition was withdrawn. 02. The respondents vide order No. AGRO ADMAIDCL of 2005 dated 21.10.2005 rescinded the earlier order dated 06.12.1996. Aggrieved of this order dated 21.10.2005 the petitioner questioned the same by filing a writ petition bearing SWP No. 1535 2005. This petition was disposed of vide order dated 08.07.2010 by holding as under: “Order No. AGRO ADMAIDCL of 2005 dated 21.10.2005 issued by the Jammu and Kashmir State Agro 2 SWP No. 1966 2011 Industries Development Corporation Limited is therefore set aside and quashed leaving the Corporation however free to pass such orders as to the petitioner’s entitlement or otherwise to the Supervisor’s grade as warranted under law after complying with the principles of Natural 03. The respondents in compliance to order of this Court considered the entitlement of petitioner to the grade of Supervisor and issued another order dated 20.08.2011 which reads as under: “................Now therefore the claim of Sh. R. K. Bhan for the post of Supervisor is rejected at this stage and he will be considered for promotion as Supervisor alongwith other eligible officials senior to him as and when the posts of Supervisor become available and are filled by the Corporation as per rules” 04. Petitioner thus is aggrieved of the aforesaid order vide which his claim for Supervisor’s grade has been rejected. It is his case that he was adjusted as a Supervisor in the P.P. Division of the Distribution and Sales of Pesticides Fungicides Wing of the Corporation and for the last 26 years he is performing his duties as Supervisor. Although similarly situated persons have been granted the grade of Supervisor but the same is denied to him. 05. In their objections it is submitted by the respondents that petitioner was promoted to the post of Supervisor after the recommendations of Grievance Committee constituted by the Corporation but the order was stayed on a petition filed by his senior colleagues. These senior colleagues have approached the Corporation to settle their cases and have also withdrawn their petition. The order was rescinded only to consider the promotion cases of all the aggrieved senior employees as Supervisors. 3 SWP No. 1966 2011 06. An application was filed by the petitioner on 02.08.2018 for placing on record an order No. Agro AdmAIDCL of 2017 dated 27.05.2017 and compliance report submitted on behalf of Managing Director J&K State Agro Industries Corporation Ltd. in contempt petition No. 642 2017 in SWP No. 1345 2005 titled ‘Ghulam Nabi Dhobi and another V. State of J&K. Vide order dated 07.09.2018 these documents obtained by the petitioner under Right to Information Act were taken on record. 07. Learned counsel for the petitioner submits that in compliance report filed on behalf of the Corporation in contempt petition the respondents have admitted that petitioner was entitled to the promotion as Supervisor retrospectively. Para 4 and 5 of the compliance report reads as under: “4. That in compliance to the orders passed by the Hon’ble Court the matter has been perused and examined by the answering respondent and on the examination of the matter the answering respondent found that an identical matter came up before the Jammu wing of this Hon’ble Court in which the Hon’ble High Court at Jammu has passed the judgment in the case of Sh. R. K. Bhan and in compliance to the said judgment a committee has been constituted for settlement of the case. The said committee after e3xamination of the record came to the conclusion that officials including Sh. R. K. Bhan who were dropped earlier should also be given similar treatment by promoting him as Supervisor retrospectively. AS such the judgment has been implemented in letter and spirit in case of R. K. Bhan. 5. That since the matter in hand is identical and is of similar nature and the petitioner is similarly situated as that of Sh. R. K. Bhan. As such the matter has been referred to the aforesaid committee for compliance of order mentioned supra. The said committee after examining the record found that the case of the petitioner is similarly situated to that of R. K. Bhan and is 4 SWP No. 1966 2011 genuine as such recommends petitioner’s promotion as Supervisor retrospectively.” 08. Vide order No. Agro AdmAIDCL of 2017 dated 27.05.2017 a Committee was constituted for settlement of the case of the petitioner. The Committee examined the case of the petitioner and recommended as under: “.................In view of the above the committee reached to the conclusion that the case is as simple as anything when all the officials who worked the Distribution of sales of pesticides fungicides wing P P Division were promoted to the post of supervisor retrospectively we may also place the aggrieved retiree Sh. R K Bhan in the grade of supervisor retrospectively thus justice is met. Submitted for consideration and orders please” The respondents in the contempt petition also sought time to comply the same 09. In view of the recommendations of the Committee constituted by the respondents this petition is allowed and order dated 20.08.2011 is quashed. Petitioner is entitled to the grade and other benefits of the post of Supervisor retrospectively terms of the recommendations of the Committee constituted for settling the case of the petitioner. 10. Disposed of. 08.06.2020 SUNIL II Whether the order is speaking: Whether the order is reportable: Yes Yes No Sindhu Sharma) Judge |
Bail u/s 37 of the NDPS Act can be granted only if there’s reasonable ground to believe that accused did not commit the offence: High Court of Delhi | The limitations on granting of bail specified in clause (b) of sub-section (1) u/s 37 of NDPS Act are in addition to the limitations under the Code of Criminal Procedure, 1973. The expression used in Section 37(1)(b)(ii) is reasonable grounds which means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence. According to Section 37 of the NDPS Act, the test required while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. These were stated by High Court of Delhi consisting, Justice Chandra Dhari Singh in the case of Muhsin Ali vs. Narcotics Control Bureau [BAIL APPLN. 3861/2021] on 25.01.2022. The facts of the case are that on 27th August 2020, the Narcotics Control Bureau (NCB) directed Investigating Officer to carry out controlled delivery operation of parcels lying at the Cargo Terminal, IGI Airport, New Delhi. Accordingly, on 1st September 2020, search operation was conducted, and the investigating team seized 970 grams of heroin and collected samples of substance found in impugned parcel. On 2nd September 2020, Wahid Ali was arrested and his statement under Section 67 of the NDPS Act was recorded. During inquiry, various incriminating documents were found in his phone including images of invoice pertaining to parcel containing drugs (second parcel), which he disclosed was due to arrive on 4th September 2020. On 4th September 2020, another search was conducted by the NCB team at Hotel Shalimar near IGI Airport where petitioner was staying along with three other persons namely Muhammed Haneef T, Muhammed Shajahan PP, and Munasir Ek. All the three co-accused were arrested on the recovery of five grams of Heroin from a bag in the room. On 5th September 2020, Bethlehem & Emmanual were both arrested who were supposed to receive the parcel. Subsequently on 15th September 2020, Peter was arrested at the instance of Bethlehem. Subsequently, on 1st July 2021, the petitioner filed First Bail Application which was rejected by the court. The learned Counsel for the Petitioner submitted that the bail should be granted on the ground of parity in terms of other co-accused since the Trial Court granted a bail to three other accused namely Mohd. Hanif, Munaser E.K. and Shahjahan. He argued that the statement of other co-accused and the accused recorded under Section 67 of the NDPS Act is inadmissible and cannot be relied upon to implicate the Petitioner. It was argued that the contraband of five grams was not in the “conscious possession” or “constructive possession” of the petitioner but was recovered from a bag inside a hotel room where the petitioner was residing along with the three other accused and even if the recovery of five grams is taken into account, it would tantamount to small quantity and not commercial quantity for which the Petitioner can be sentenced for a maximum period of one year, out of which he has already undergone for a period of more than 12 months in custody. The Counsel further submitted that the petitioner should be granted bail as he has never avoided any investigation or court order. The learned Counsel for the respondent submitted the petitioner’s statement was not statement simpliciter but led to the discovery of the impugned parcel, thus is admissible. On the ground of parity, he argued that the other co-accused who were released on bail were not implicated in other recoveries. On the other hand, the role of the Petitioner is ascribed in other recoveries. He further contended that the sequence of events prima facie establishes conspiracy on the part of petitioner. It was also submitted that the petitioner was part of a drugsyndicate indulging in illegal business of drug-trafficking and thus is not entitled to bail on the contours of Section 37 of the NDPS Act. The High Court of Delhi held that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity. The expression used in Section 37(1)(b)(ii) is reasonable grounds which means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence. According to Section 37 of the NDPS Act, the test which Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. In the present case, the Petitioner is charged for commercial quantity and his bail application needs to be decided as per Section 37 of the Act. Thus, the ground of parity for seeking bail is erroneous and is rejected at the very outset. Accordingly, the instant Bail Application stood dismissed. | IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17th January 2022 Pronounced on: 25th January 2022 BAIL APPLN. 3861 2021 MUHSIN ALI Through: Mr. Sameer Rohatgi and Mr. … Petitioner Manohar Malik Advocates NARCOTICS CONTROL BUREAU … Respondent Through: Mr. Subhash Bansal Senior Standing Counsel with Mr. Shashwat Bansal Advocate. HON’BLE MR. JUSTICE CHANDRA DHARI SINGH JUDGMENT CHANDRA DHARI SINGH J. The present petition has been preferred under Section 439 of the Code of Criminal Procedure 1973for seeking regular bail in FIR bearing No. VII 41 DZU 2021 registered under Sections 8(C) 21(C) 23 and 29 of Narcotics Drugs and Psychotropic Substances Act hereafter “NDPS Act”) registered with Narcotics Control Bureau Delhi. The factual matrix in the instant case as submitted by the prosecution is as under: BAIL APPLN. 3861 2021 a) On 27th August 2020 the Narcotics Control Bureau hereinafter “NCB”) directed Mr. Chetan Sharma Investigating Officer for carrying out controlled delivery operation of parcels bearing Airway Bill No. 1735174092 and PPA32016193974 lying at the Cargo Terminal IGI Airport New Delhi. Accordingly on 1st September 2020 search operation was conducted and investigating team seized 970 grams of heroin and collected samples of substance found in parcels bearing Airway Bill No. PPA32016193974The investigating team conducted a controlled delivery of subject parcel which was received by another co accused namely Wahid Ali. On 2nd September 2020 Wahid Ali was arrested and his statement under Section 67 of the NDPS Act was recorded. During inquiry various incriminating documents were found in his phone including images of invoice pertaining to parcel bearing no. AWBY Y0032216496 containing drugs which he disclosed was due to arrive on 4th September 2020 On 4th September 2020 another search was conducted by the NCB team at Hotel Shalimar near IGI Airport where Petitioner was staying in room no. 301 along with three other persons namely Muhammed Haneef T Muhammed Shajahan PP and Munasir Ek. All the three co accused were arrested on the recovery of five grams of Heroin from a bag in the room. Another search was conducted at the house of the Petitioner in Uttam Nagar New Delhi. Nothing was recovered in the search however certain BAIL APPLN. 3861 2021 information was disclosed by the Petitioner which was recorded and thereafter he was arrested by the Investigating Officer On 4th September 2020 a disclosure report was prepared wherein the petitioner had disclosed that he was supposed to receive the second parcel and was required to deliver it to Frank‟s Girlfriend Bethlehem alias Nunu at Nawada Metro Station at 5 pm on the said date. At 5:15 pm search was conducted at Nawada Metro Station and Bethlehem came to receive the second parcel Upon being apprehended she disclosed that a person named Emmanuel Williams who would be receiving the first parcel from Wahid Ali. Bethlehem further disclosed that she was working with Peter Chibuzor alias Frank and Emmanual Williams The Investigating Officer along with Bethlehem reached the Church at Sector 9 Dwarka in Ambarahi Village where Emmanual Williams came to collect the parcel from Bethlehem. Emmanual Williams came near Bethlehem and enquired about the parcel at which point the NCB Team apprehended him. Emmanual Williams disclosed that he had come to receive the parcel at the instance of his friend Peter Chibuzor@Frank who resides in Greater Noida The Investigating Officer served the Notice under Section 67 of the NDPS Act to Emmanual Williams to tender his voluntary statement and the statement of the co accused Emmanual Williams was recorded on 4th September 2020. He disclosed that he had been doing the business with Peter and also disclosed that he knew BAIL APPLN. 3861 2021 Bethlehem who was Peter‟s girlfriend and was getting forged ID‟s for him On 5th September 2020 Bethlehem & Emmanual were both arrested. Subsequently on 15th September 2020 Peter was arrested at the instance of Bethlehem and his disclosure statement was recorded. He disclosed his drug business relations with Bethlehem Emmanual. On 17th September 2020 the disclosure statement of co accused Peter was recorded again. On 1st March 2021 Intelligence Officer Mr. R.K. Maurya filed the complaint case bearing SC no. 67 2021 under Section 8(c) 21(c) 23 29 of the NDPS act before the court of Additional Sessions Judge Patiala House Courts and subsequently on the same day cognizance was taken by the ASJ against all accused persons including the petitioner. On 9th April 2021 the Trial court vide its order granted bail to the co accused namely Mohd. Hanif Munasir E.K. and Shahjahan who arrested along with the petitioner and who were present at time of search and recovery of 5gm of Heroin. On 1st July 2021 the petitioner filed First Bail Application which was rejected on 25th September 2021 by the court of Sh. A K Jain ASJ Special Judge NDPS Act. Investigation in the present case is completed and supplementary chargesheet was filed on 8th April 2021 against the petitioner and other co accused under Section 8(c) 21(c) 23 29 of the NDPS Act. BAIL APPLN. 3861 2021 7. Mr. Sameer Rohtagi Learned Counsel for the Petitioner made the following submissions: Firstly the bail should be granted on the ground of parity in terms of other co accused who were arrested from the hotel room where a recovery of 5 grams of heroin was made on 4th September 2020. The Trial Court vide its order dated 9th April 2021 has granted bail to three other accused namely Mohd. Hanif Munaser E.K. and Shahjahan Secondly he argued that the statement of other co accused and the accused recorded under Section 67 of the NDPS Act is inadmissible and cannot be relied upon to implicate the Petitioner. To buttress this argument he placed reliance on the judgement of Toofan Singh v. State of Tamil Nadu AIR 2020 SC 5592 Thirdly it was argued that the contraband of five grams was not in the “conscious possession” or “constructive possession” of the Petitioner but was recovered from a bag inside a hotel room where the Petitioner was residing along with the three other accused Fourthly even if the recovery of five grams is taken into account it would tantamount to small quantity and not commercial quantity for which the Petitioner can be sentenced only for a maximum period of one year out of which he has already undergone for four months in custody BAIL APPLN. 3861 2021 e. Fifthly it was argued that it is wholly wrong to contend that the impugned parcel was recovered at the instance of the Petitioner. There is no evidence against the petitioner to implicate him with the alleged offences and the prosecution‟s case solely rests on the disclosure statement of co accused Wahid Ali Mohd. Hanif Mohd. Shahjahan Munasir E.K and there has been no recovery of any contraband goods from the petitioner Sixthly it was submitted that the petitioner has never avoided any investigation or court order and has not kept himself away from arrest by the NCB officer and Lastly it was submitted that the petitioner was arrested on 4th September 2020 and since then is in Judicial custody i.e. a period of more than 12 months. 8. Mr. Subhash Bansal Sr. Standing Counsel appearing for the respondent department has vehemently opposed the instant bail petition. With reference to the confessional statement of the petitioner it is submitted that the petitioner‟s statement was not statement simpliciter but led to the discovery of the impugned parcel thus is admissible. On the ground of parity he argued that the other co accused who were released on bail were not implicated in other recoveries. On the other hand the role of the Petitioner is ascribed in other recoveries. It is his argument that the sequence of events prima facie establishes conspiracy on the part of petitioner. It is also submitted that the Petitioner is part of a drug syndicate indulging in illegal business of drug trafficking and thus is not BAIL APPLN. 3861 2021 entitled to bail on the contours of Section 37 of the NDPS Act. He also placed reliance on the following observation of the Special Judge‟s order dated 25th September 2021 by which the bail application of the petitioner was refused: “Muhsin Ali Mohd. Shahjahan Munasir and Mohd. Haneef were apprehended and from the bag of accused Muhsin Ali 5 gm of heroin was recovered. Muhsin Ali also corroborated story alleged by the accused Wahid Ali and their dealings in drug with foreign Nigerians. Thereafter at his instance one more parcel containing 980 gm of heroin was recovered. The parcel already seized by NCB is to be delivered to Bethlehem and when she came to take the delivery she was also apprehended. Thereafter at his instance accused Emmanuel Williams was also apprehended. From both those accused also the parcels of contraband were recovered. Co accused Frank was also apprehended later on. Entire syndicate dealing in drug supply is apprehended and found to be doing the business continuously. The knowledge of number of parcels from co accused do not in any manner discredit the delivery of parcel to this accused at this stage on the other hand suggests factum of conspiracy. The mobile phone containing whatsapp chats also connects this accused with accused Wahid Ali and Frank. There is an explicit recovery of contraband parcels from present accused thus there is statutory presumption u s 35 and 54 NDPS Act against the accused persons. The credibility of prosecution case cannot be adjudged at this stage. BAIL APPLN. 3861 2021 As far as parity is concerned co accused Mohd. Shahjahan Munasir and Mohd. Haneef were granted bail as do not found to have been connected with other recoveries at the instance of accused Munasir or other accused persons and this fact is squarely noted in the bail orders dated 09.04.2021 and 23.04.2021 that the grant of bail to these accused is not to be considered as parity for other accused.” Based on the aforesaid observations it is submitted that the arguments on the ground of parity have already been dealt with by the Special Judge in detail and there is nothing illegal or erroneous in the said Order and in light of the mandate of the NDPS Act bail should not be Heard learned counsels for the parties and perused the record specifically the averments made in the petition the contents of the FIR the Status Report filed by the State and the Bail Order dated 25th September 2021. In light of the aforesaid it is pertinent to refer and analyze the provisions and objective of the NDPS Act. Section 37 of the Act reads as 37. Offences to be cognizable and non bailable. 1) Notwithstanding anything contained in the Code of Criminal Procedure 1973a) every offence punishable under this Act shall be cognizable BAIL APPLN. 3861 2021 no person accused of an offence punishable for 1[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless i) the Public Prosecutor has been given an opportunity to oppose the application for such release and ii) where the Public Prosecutor opposes the application the court reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 74) or any other law for the time being in force on granting of bail. In view of the gravity of the consequences of drug trafficking the offences under the NDPS Act have been made cognizable and non bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two fold conditions prescribed under the Section have been met. The conditions include: hearing the Public Prosecutor and BAIL APPLN. 3861 2021 b) Satisfaction of the court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature. 12. The fetters on the power to grant bail does not end here they are over and above the consideration of relevant factors that must be done while considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 439 of the Code. Thus it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above what has been prescribed under the Code. 13. The contours of Section 37 of the Act have been analysed by the Hon‟ble Supreme Court in the case of Union of India v. Ram Samujh 1999) 9 SCC 429. In this case the Apex Court adjudged the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon‟ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 1288. It is relevant to extract those for the present analysis which reads as: “6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 “Even though the major offences are non bailable by virtue of the level of punishments on technical grounds drug offenders were BAIL APPLN. 3861 2021 being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act 1985 the need to amend the law to further it has been 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case the accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable it causes deleterious effects and a deadly impact on the society they are a hazard to the society even if they are released temporarily in all probability they would continue their nefarious activities of trafficking and or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court dealing with the contention with regard to punishment under the NDPS Act has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy. Union Territory of Goa1 SCC 95 1990 SCC65] as under:“24. With deep concern we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public particularly BAIL APPLN. 3861 2021 adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore in order to effectively control and eradicate this proliferating and booming devastating menace causing deleterious effects and deadly impact on the society as a whole Parliament in its wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.” 14. Thus what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire society especially the youth of the country. Such offences have a cascading effect and are in vogue these days thus destroying the capabilities and lives of a substantial chunk of the population and trend has been growing over the years. Thus to prevent the devastating impact on the people of the nation Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court must stay mindful of the legislative intent and mandate of the Act while considering the question bail in such matters. 15. As far as condition under Section 37(b)(i) is concerned there is no ambiguity in its interpretation. It gives effect to the doctrine of audi alteram partem. Since the crime is an act against the society the legislature has contemplated that the Public Prosecutor must be given an opportunity to oppose a bail application under the Act. Additionally under Section 37(b)(ii) of the NDPS Act the court is not required to be BAIL APPLN. 3861 2021 merely satisfied about the dual conditions i.e. prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail but the court must have „reasonable grounds‟ for such satisfaction. 16. The term „reasonable grounds‟ under Section 37(b)(ii) has been interpreted by the Hon‟ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari 7 SCC 798. It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The special court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the accused but other family members were also involved. The Supreme Court set aside the order granting bail. In this context it interpreted „reasonable grounds‟ under Section 37 of the Act as under: grounds”. The “7. The expression used in Section 37(1)(b)(ii) is expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated existence of such facts and circumstances as are justify recording of satisfaction that the accused is not guilty of the offence charged. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor called on to act turn points BAIL APPLN. 3861 2021 reasonably knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. 17. Thus the term „reasonable grounds‟ is not capable of any rigid definition but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus what may be reasonable in one set of facts may not be reasonable in another set of facts. However the standard of satisfaction in such cases is more than mere satisfaction on a prima facie opinion. Thus the court before exercising its discretion for granting the bail must record the reasonable grounds before granting bail to the accused. 18. The Supreme Court recently in the case of Union of India v. Md. Nawaz Khan10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon‟ble Supreme Court the court prescribed the following test for granting bail under Section 37 of the NDPS Act: “20. Based on the above precedent the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking the country stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 19. Thus the court must be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the BAIL APPLN. 3861 2021 person accused of the offence under the Act is released on bail. The court ought to be satisfied on the basis of reasonable grounds discernible from the facts and circumstances that the Petitioner is not guilty of offences that the accused is charged with. Additionally the court also needs to be satisfied that the person so released will not commit the offence while being on bail. Both the conditions are interlinked because the legislature intends that in cases where there is a possibility of commission of this grave offence under the Act the person need not be released. It is so because if the person is released he is most likely to repeat the offence thus impacting the society at large. Thus to not give any leeway to the accused the court has to be satisfied about the dual conditions on reasonable grounds. In the instant case the case of the Petitioner and his role in the entire sequence of events is not as simple as has been projected during the entire course of arguments by learned counsel for the petitioner. He is not merely arrested for the small quantity of contraband weighing five grams but has been implicated for his role as being a part of a larger drug syndicate. However the co accused who have been released on bail were charged with offences of smaller quantity to which the rigors of Section 37 did not apply. However the Petitioner is charged for commercial quantity and his bail application needs to be decided as per Section 37 of the Act. Thus the ground of parity for seeking bail is erroneous and is rejected at the very outset. 21. Further the statement of the Petitioner was not a mere statement but led to the discovery of the first parcel containing 980 grams of Heroin BAIL APPLN. 3861 2021 which is a commercial quantity. Thus the statement of the accused can be made admissible in accordance with Section 27 of the Indian Evidence Act 1872. The judgement of Toofan Singhwill not apply in the instant case because it was a case where the Hon‟ble Supreme Court held that the confessional statement of an accused to the officers under Section 53 of the Indian Evidence Act will not be admissible as evidence. However Section 27 serves as a proviso to Section 25 of the Indian Evidence Act and states that the statement can be made admissible if such statement leads to a discovery of fact. In the present case the statement of the Petitioner led to the discovery of the parcel. Thus Section 25 and the case of Toofan Singhwill not be applicable in the present case. If the argument of the Petitioner is accepted it would render the provisions of Section 27 of the Indian Evidence Act otiose which can never be allowed. 22. Other co accused have also ascribed the role of the petitioner where he was responsible to deliver the packages containing Heroin to several persons including certain Nigerian citizens. Thus the accused in these circumstances and at this stage cannot be presumed to be „not guilty‟ of the offence that he is charged with. Additionally as the Special Judge has rightly observed the presumption under Section 35 and 54 of the NDPS Act are against the Petitioner‟s innocence. 23. Proceeding to the application of Section 37 in the instant matter the Public Prosecutor has been heard who has vehemently opposed the bail petition with reasons. With respect to the second condition prescribed thereunder this Court is satisfied that there are no reasonable grounds BAIL APPLN. 3861 2021 based on the analysis of the provision in the foregoing paragraphs and its application to the facts of the case for this Court to believe that the Petitioner is not guilty of the offence that he has been charged with. Since this court is not satisfied on this ground there is no question to consider that the accused will not commit the offence while on bail. In view of the aforementioned facts circumstances analysis and reasoning keeping in mind the legal provisions and the underlying intent as well as the mischief that is sought to be curbed by the NDPS Act this Court is of the considered view that the conditions stipulated under Section 37 of the Act are not satisfied and there are no „reasonable grounds‟ to presume the accused as not being guilty of the offence. Thus this Court is not inclined to allow the instant Bail Application as being devoid of any merit and hence liable to be dismissed. 25. Accordingly the instant Bail Application stands dismissed. 26. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) January 25 2022 BAIL APPLN. 3861 2021 |
Datar Switchgears Ltd. V/s. Tata Finance Ltd. & Anr. | If one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. The appellant had entered into a lease agreement with the 1st respondent in respect of certain machineries. Dispute arose between the parties and the 1st respondent sent a notice to the appellant on 5.8.1999 demanding payment of Rs. 2,84,58,701 within fourteen days and in the notice it was specifically stated that in case of failure to pay the amount, the notice be treated as one issued under Clause 20.9 (Arbitration clause) of the Lease Agreement. The appellant did not pay the amount as demanded by the 1st respondent. The 1st respondent did not appoint an Arbitrator even after the lapse of thirty days, but filed Arbitration Petition No. 405/99 on 26.10.99 under Section 9 of the Act for interim protection. On 25.11.99, the 1st respondent appointed the 2nd respondent as the sole Arbitrator by invoking clause 20.9 of the Lease Agreement and the Arbitrator in turn issued a notice to the appellant asking them to make their appearance before him on 13th March, 2000. PROCEDURAL HISTORY: Thereafter, the appellant filed Arbitration Application No. 2/2000 before Hon’ble the Chief Justice of Bombay and prayed for appointment of another Arbitrator and the 1st respondent opposed this application. This petition was rejected by the Chief Justice holding that as the Arbitrator had already been appointed by the first respondent, the Lessor, the petition was not maintainable. This order is challenged before supreme court.The appellant challenges an order passed by the Chief Justice of Bombay High Court, under Section 11 of the Arbitration and Conciliation Act, 1996. ISSUE BEFORE THE COURT: Whether in a case falling under Section 11(6) of the Arbitration and Conciliation Act, 1996 the arbitrator has to be appointed within 30 days from the date mentioned in the notice for appointment of arbitrator?Whether there was any real failure of the mechanism provided under the lease Agreement. RATIO OF THE COURT:The court observed that the Arbitration and Conciliation Act, 1996 made certain drastic changes in the Law of Arbitration. Section 11 of the Act deals with the procedure for appointment of Arbitrator. Section 11(2) says that the parties are free to agree to any procedure for appointing the Arbitrator. If only there is any failure of that procedure, the aggrieved party can invoke sub-clause (4), (5) or (6) of Section 11, as the case may be. In the instant case, the Arbitration clause in the Lease Agreement contemplates appointment of a sole Arbitrator. If the parties fail to reach any agreement as referred to in Sub-Section (2), or if they fail to agree on the Arbitrator within thirty days from receipt of the request by one party, the Chief Justice can be moved for appointing an Arbitrator either under sub-clause (5) or sub-clause (6) of Section 11 of the Act.The appellant in his application does not mention under which sub- section of Section 11 the application was filed. Evidently it must be under Sub-section (6) (a) of Section 11, as the appellant has no case that a notice was issued but an Arbitrator was not appointed or that there was a failure to agree on certain Arbitrator. The contention of the appellant might be that the first respondent failed to act as required under the procedure.The appellant contended that the 1st respondent did not appoint the Arbitrator within a reasonable period and that amounts to failure of the procedure contemplated under the Agreement. The court’s attention was drawn to a decision of the Bombay High Court reported in 1999(2) Bombay CR. 189 (Naginbhai C. Patel Vs. Union of India).The court held that the above decision has no application to the facts of this case as in the present case, the Arbitrator was already appointed before the appellant invoked Section 11 of the Act. The Counsel for the appellant contended that the Arbitrator was appointed after a long lapse of time and that too without any previous consultation with the appellant and therefore it was argued that the Chief Justice should have appointed a fresh arbitrator. We do not find much force in this contention, especially in view of the specific words used in the Arbitration clause in the Agreement, which is extracted above. The court observed that this is not a case where the appellant requested and gave a notice period for appointment of arbitrator and the latter failed to comply with that request. The amount allegedly due from the appellant was substantial and the 1st respondent cannot be said to be at fault for having given a larger period for payment of the amount and settling the dispute. It is pertinent to note that the appellant did not file an application even after the 1st respondent invoked Section 9 of the Act and filed a petition seeking interim relief. Under such circumstances, it cannot be said that there was a failure of the procedure prescribed under the contract.In court’s view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, that would be sufficient.In the present case the respondent made the appointment before the appellant filed the application under Section 11(6) though it was beyond 30 days from the date of demand. In our view, the appointment of the arbitrator by the respondent is valid and it cannot be said that the right was forfeited after expiry of 30 days from the date of demand.The court settled that When parties have entered into a contract and settled on a procedure, due importance has to be given to such procedure. Even though rigor of the doctrine of “freedom of contract” has been whittled down by various labour and social welfare legislation, still the court has to respect http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6 the terms of the contract entered into by parties and endeavor to give importance and effect to it. When the party has not disputed the arbitration clause, normally he is bound by it and obliged to comply with the procedure laid down under the said clause. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE K.G BALKRISHNA that the court do not think that the first respondent, in appointing the second respondent as the Arbitrator, failed to follow the procedure contemplated under the Agreement or acted in contravention of the Arbitration clause.Lastly, the appellant alleged that “nomination” mentioned in the arbitration clause gives the 1st respondent a right to suggest the name of the Arbitrator to the appellant and the appointment could be done only with the concurrence of the appellant. The bench did not find any force in the contention.The appellant, while filing the application under Section 11 of the Act had no cause of action to sustain the same as there was no failure of the agreement or that the 1st respondent failed to act in terms of the agreement. The application was rightly rejected. The appeal deserves to be and is accordingly dismissed, however, without any order as to costs. | Appeal5986 of 2000 Special Leave Petition13812 of 2000 DATAR SWITCHGEARS LTD Vs TATA FINANCE LTD. & ANR DATE OF JUDGMENT: 18 10 2000 M.J.Rao K.G.Balakrishna Balakrishnan J The appellant challenges an order passed by the Chief Justice of Bombay High Court under Section 11 of the Arbitration and Conciliation Act 1996of the Lease Agreement. The appellant did not pay the amount as demanded by the 1st respondent. The 1st respondent did not appoint an Arbitrator even after the lapse of thirty days but filed Arbitration Petition No. 405 99 on 26.10.99 under Section 9 of the Act for interim protection. On 25.11.99 the 1st respondent appointed the 2nd respondent as the sole Arbitrator by invoking clause 20.9 of the Lease Agreement and the Arbitrator in turn issued a notice to the appellant asking them to make their appearance before him on 13th March 2000. Thereafter the appellant filed Arbitration Application No. 2 2000 before Hon’ble the Chief Justice of Bombay and prayed for appointment of another Arbitrator and the 1st respondent opposed this application. This petition was rejected by the Chief Justice holding that as the Arbitrator had already been appointed by the first respondent the Lessor the petition was not maintainable This order is challenged before us We heard the appellant’s Counsel Mr. V.A. Mohta and respondent’s Counsel Mr. R.F. Nariman. The appellant’s Counsel questioned the authority of the 1st respondent in appointing an Arbitrator after the long lapse of the notice period of 30 days. According to the appellant the power of appointment should have been exercised within a reasonable time. The appellant’s Counsel also urged that unilateral appointment of Arbitrator was not envisaged under the Lease Agreement and the 1st respondent should have obtained the consent of the appellant and the name of the Arbitrator should have been proposed to the appellant before appointment. On the other hand the Counsel for the 1st respondent supported the impugned order Learned counsel for the appellant Shri V.A. Mohta argued that the order passed by the Chief Justice is amenable to Article 136 of the Constitution of India. Even if it is an administrative order as decided by a three Judge Bench in Konkan Railway Corporation Ltd. Vs. M s Mehul Construction Co. 2000(6) SCALE 71 it is amenable to Article 136. Learned Senior Counsel for the 1st respondent Shri R.F. Nariman however stated that in this case we need not go into this controversy and we may decide the matter on merits on the assumption that Article 136 is attracted. In view of the above stand taken for the respondents we are not deciding the question of The Arbitration and Conciliation Act 1996 made certain drastic changes in the Law of Arbitration. This Act is codified in tune with the Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Lawsays that the parties are free to agree to any procedure for appointing the Arbitrator. If only there is any failure of that procedure the aggrieved party can invoke sub clause(5) orof Section 11 as the case may be. In the instant case the Arbitration clause in the Lease Agreement contemplates appointment of a sole Arbitrator. If the parties fail to reach any agreement as referred to in Sub Sectionor if they fail to agree on the Arbitrator within thirty days from receipt of the request by one party the Chief Justice can be moved for appointing an Arbitrator either under sub clause or sub clauseof Section 11 of the Act Sub clauseof Section 11 can be invoked by a party who has requested the other party to appoint an Arbitrator and the latter fails to make any appointment within thirty days from the receipt of the notice. Admittedly in the instant case the appellant has not issued any notice to the 1st respondent seeking appointment of an Arbitrator. An application under sub clauseof Section 11 can be filed when there is a failure of the procedure for appointment of Arbitrator. This failure of procedure can arise under different circumstances. It can be a case where a party who is bound to appoint an Arbitrator refuses to appoint the Arbitrator or where two appointed Arbitrators fail to appoint the third Arbitrator. If the appointment of Arbitrator or any function connected with such appointment is entrusted to any person or institution and such person or institution fails to discharge such function the aggrieved party can approach the Chief Justice for appointment of The appellant in his application does not mention under which sub section of Section 11 the application was filed. Evidently it must be under Sub section(a) of Section 11 as the appellant has no case that a notice was issued but an Arbitrator was not appointed or that there was a failure to agree on certain Arbitrator. The contention of the appellant might be that the first respondent failed to act as required under the procedure Therefore the question to be considered is whether there was any real failure of the mechanism provided under the Lease Agreement. In order to consider this it is relevant to note the Arbitration clause in the Agreement Clause 20.9 of the Agreement is the Arbitration clause which is to the following effect: 20.9 " It is agreed by and between the parties that in case of any dispute under this Lease the same shall be referred to an Arbitrator to be nominated by the Lessor and the award of the Arbitrator shall be final and binding on all the parties concerned. The venue of such arbitration shall be in Bombay. Save as aforesaid the Courts at Bombay alone and no other Courts whatsoever will have jurisdiction to try suit in respect of any claim or dispute arising out of or under this Lease or in any way relating to the same The above clause gives an unfettered discretion to the 1st respondent lessor to appoint an Arbitrator. The 1st respondent gave notice to the appellant and later appointed the 2nd respondent as the Arbitrator. It is pertinent to note that no notice period is prescribed in the above arbitration clause and it does not speak about any concurrence or consent of the appellant being taken in the matter of the choice of Arbitrator The question then arises whether for purposes of Section 11(6) the party to whom a demand for appointment is made forfeits his right to do so if he does not appoint an arbitrator within 30 days. Learned Senior counsel for the appellant contends that even though Section 11(6) does not prescribe a period of 30 days it must be implied that 30 days is a reasonable time for purposes of Section 11(6) and thereafter the right to appoint is forfeited. Three judgments of the High Courts from Bombay Delhi and Andhra Pradesh are relied upon in this connection Learned Senior counsel for the respondents submits that the Bombay Delhi and Andhra pradesh cases relied upon are distinguishable. It is also contended that under Section 11(6) no period of time is prescribed and hence the opposite party can make an appointment even after 30 days provided it is made before the application is filed under The appellant contended that the 1st respondent did not appoint the Arbitrator within a reasonable period and that amounts to failure of the procedure contemplated under the Agreement. Our attention was drawn to a decision of the Bombay High Court reported in 1999(2) Bombay CR. 189 Naginbhai C. Patel Vs. Union of India). There the petitioner a Govt. Contractor as per the form of the Arbitration clause requested the Secretary P.W.D to appoint the arbitrator. The Secretary P.W.D. did not take any action and the petitioner filed an application under Section 11(6) of the Act. After the filing of this application the respondent appointed an Arbitrator and urged before the Chief Justice that application under Section 11(6) filed by the petitioner became infructuous. It was held that the petitioner had waited for 30 days for appointment of the arbitrator and as the respondent had failed to appoint the arbitrator the objection was not sustainable and the appointment of arbitrator made by the respondent was not valid in the eye of law The above decision has no application to the facts of this case as in the present case the Arbitrator was already appointed before the appellant invoked Section 11 of the Act. The Counsel for the appellant contended that the Arbitrator was appointed after a long lapse of time and that too without any previous consultation with the appellant and therefore it was argued that the Chief Justice should have appointed a fresh arbitrator. We do not find much force in this contention especially in view of the specific words used in the Arbitration clause in the Agreement which is extracted above. This is not a case where the appellant requested and gave a notice period for appointment of arbitrator and the latter failed to comply with that request. The 1st respondent asked the appellant to make payment within a stipulated period and indicated that in the event of non payment of the amount within fourteen days the said notice itself was to be treated as the notice under the Arbitration clause in the Agreement. The amount allegedly due from the appellant was substantial and the 1st respondent cannot be said to be at fault for having given a larger period for payment of the amount and settling the dispute. It is pertinent to note that the appellant did not file an application even after the 1st respondent invoked Section 9 of the Act and filed a petition seeking interim relief. Under such circumstances it cannot be said that there was a failure of the procedure prescribed under the The decision of the Delhi High Court in B.W.L. Ltd Vs. MTNL & Ors. Arb. LR 190decided on 23.2.2000 is also distinguishable inasmuch as the respondent in spite of being given opportunity on 11.10.99 by the Court after filing of the application under Section 11 to appoint an arbitrator failed to do so and the Court felt that it was a fit case for appointment of an arbitrator under Section 11. This case is also distinguishable as the appointment was not made before the filing of the application under Section 11 In Sharma & Sons vs. Engineer in Chief Army Headquarters New Delhi & Ors. Arb.LR 31 the respondents were requested on 26.6.95 6.8.95 and other dates in 1997 to appoint an arbitrator. Application under Section 11 was filed after nearly 4 years on 21.4.99. Only thereafter the respondent appointed an arbitrator on 13.5.99 but only in respect of some of the disputes. The respondent felt that the other disputes were outside the ambit of the arbitration clause. The High Court of Andhra pradesh held that in view of Section 11(6) read with Section 11(8) the respondent had forfeited his right to appoint an arbitrator after the expiry of 30 days from the date of demand for arbitrator. Even in the above case the appointment was not made before the application under Section 11 was filed. Hence the case is not applicable to the facts of this case In all the above cases therefore the appointment of the arbitrator was not made by the opposite party before the application was filed under Section 11. Hence all the above cases are not directly in point In the present case the respondent made the appointment before the appellant filed the application under Section 11 but the said appointment was made beyond 30 days Question is whether in a case falling under Section 11(6) the opposite party cannot appoint an arbitrator after the expiry of 30 days from the date of demand So far as cases falling under Section 11(6) are concerned such as the one before us no time limit has been prescribed under the Act whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act. In our view therefore so far as Section 11(6) is concerned if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand but before the first party has moved the Court under Section 11 that would be sufficient. In other words in cases arising under Section 11(6) if the opposite party has not made an appointment within 30 days of demand the right to make appointment is not forfeited but continues but an appointment has to be made before the former files application under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. We do not therefore agree with the observation in the above judgments that if the appointment is not made within 30 days of demand the right to appoint an arbitrator under Section 11(6) is forfeited In the present case the respondent made the appointment before the appellant filed the application under Section 11(6) though it was beyond 30 days from the date of demand. In our view the appointment of the arbitrator by the respondent is valid and it cannot be said that the right was forfeited after expiry of 30 days from the date of We need not decide whether for purposes of sub clauses 4) and of Section 11 which expressly prescribe 30 days the period of 30 days is mandatory or not While interpreting the power of the Court to appoint arbitrator under Section 8 of the Arbitration Act 1940 this Court in Bhupinder Singh Bindra Vs. Union of India and Another5 SCC 329 in para 3 held as under: "It is settled law that court cannot interpose and interdict the appointment of an arbitrator whom the parties have chosen under the terms of the contract unless legal misconduct of the arbitrator fraud disqualification etc is pleaded and proved. It is not in the power of the party at his own will or pleasure to revoke the authority of the arbitrator appointed with his consent. There must be just and sufficient cause for revocation When parties have entered into a contract and settled on a procedure due importance has to be given to such procedure. Even though rigor of the doctrine of "freedom of contract" has been whittled down by various labour and social welfare legislation still the court has to respect the terms of the contract entered into by parties and endeavor to give importance and effect to it. When the party has not disputed the arbitration clause normally he is bound by it and obliged to comply with the procedure laid down under the said clause Therefore we do not think that the first respondent in appointing the second respondent as the Arbitrator failed to follow the procedure contemplated under the Agreement or acted in contravention of the Arbitration Lastly the appellant alleged that "nomination mentioned in the arbitration clause gives the 1st respondent a right to suggest the name of the Arbitrator to the appellant and the appointment could be done only with the concurrence of the appellant. We do not find any force in In P. Ramanatha Aiyar’s Law Lexiconat page 1310 the meaning of the word ’Nomination" is given as follows: "The action process or instance of nominating 2. The act process or an instrument of nominating an act or right of designating for an office or duty "Nominations" is equivalent to the word appointments" when used by a mayor in an instrument executed for the purpose of appointing certain persons to Nomination virtually amounts to appointment for a specific purpose and the 1st respondent has acted in accordance with Section 20.9 of the Agreement. So long as the concurrence or ratification by the appellant is not stated in the arbitration clause the nomination amounts to selection of the Arbitrator Hence the appellant while filing the application under Section 11 of the Act had no cause of action to sustain the same as there was no failure of the agreement or that the 1st respondent failed to act in terms of the agreement. The application was rightly rejected. The appeal deserves to be and is accordingly dismissed however without any order as to costs |
“The appellant also alleged that the impugned order does not disclose the designation of the respondent…”: SEBI, Part 1. | 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 Nitin Goel v CPIO, SEBI, Mumbai (Appeal No. 4377 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Nitin Goel had filed an application via RTI MIS Portal on the 26th of June, 2021 under the Right to Information Act, 2005, received by the SEBI on the 9th of June, 2021. The respondent responded to the application by a letter on the 19th of July, 2021, filed by the appellate. After receiving a letter from the respondent on 19th of July, 2021, on his application, the appellate decided to file an appeal on the 29th of July, 2021. The appellant, vide his application dated June 07, 2021, sought the following information regarding the following: “A-1) Copy of procedure to be followed by DP to transfer the suspended Shares by “off Market Trade” to the willing buyer because the DP says that computer is not catching the suspended ISIN Number. A-2) I ask about 2 companies whos ISIN No. are showing as suspended. Please supply copy of document to The respondent, in response to query numbers A1 and A2, informed that the same are not clear and specific and are in the nature of seeking clarification. Accordingly, the same cannot be construed as seeking “information”, as defined under Section 2(f) of the RTI Act. However, the respondent informed that the norms governing the Depository Participants (DPs) are stipulated in SEBI website under Regulations/Master Circulars. It was also informed that the same is available in the website of the respective Depositories. Further, the web-links for accessing the said SEBI Regulations/Master Circular was also provided. On perusal of the application, it appears that the appellant is not satisfied with the response provided by the respondent. The appellant, in his appeal, submitted that the requested information is not supplied. The appellant also alleged that the impugned order does not disclose the designation of the respondent. | Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 4377 of 2021 Nitin Goel CPIO SEBI Mumbai The appellant had filed an application dated June 07 2021under the Right to Information Act 2005 against the said response dated June 29 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Queries in the application The appellant vide his application dated June 07 2021 sought the following information regarding the following: “A 1) Copy of procedure to be followed by DP to transfer the suspended Shares by “off Market Trade” to the willing buyer because the DP says that computer is not catching the suspended ISIN Number. A 2) I ask about 2 companies whos ISIN No. are showing as suspended. Please supply copy of document to Off market transfer the another Demat account Close the Demat account as we are incurring maintenance charges on the account Re materialise the shares and hold in physical form.” The respondent in response to query numbers A1 and A2 informed that the same are not clear and specific and are in the nature of seeking clarification. Accordingly the same cannot be construed as seeking “information” as defined under Section 2(f) of the RTI Act. However the respondent informed that the norms governing the Depository Participants are stipulated in SEBI website under Regulations Master Circulars. It was also informed that the same is available in the website of the Appeal No. 43721 respective Depositories. Further the web links for accessing the said SEBI Regulations Master Circular was also provided. The Ground of appeal: On perusal of the application it appears that the appellant is not satisfied with the response provided by the respondent. The appellant in his appeal submitted that the requested information is not supplied. The appellant also alleged that the impugned order does not disclose the designation of the respondent. 5. Query number A1 On plain reading of query number A1 I find that the same is vague and not clear. I find that no information as defined under section 2(f) of the RTI Act has been sought by the appellant. I note that in the matter of Shri S. C. Sharma vs. CPIO Securities and Exchange Board of India the Hon ble CIC had held that: "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 not clear and specific. Accordingly I do not find any deficiency in the response. 6. Notwithstanding the above I note that the respondent has guided the appellant to access the relevant norms Master Circular governing the Depository Participantsheld that “….. unless an information is exclusively held and controlled by a public authority that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either Appeal No. 43721 freely or on payment of a pre determined price that information cannot be said to be ‘held’ or ‘under the control of’ the public authority and thus would cease to be an information accessible under the RTI Act.” In view of these observations I find that the respondent cannot be obliged to provide a response to such request for information as made by the appellant through his application. Notwithstanding the same I note that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. Further I note that the appellant in his appeal submitted that the designation of the respondent has not been indicated in the response. On perusal of the response I find that the same has been duly signed. I also find that the relevant information regarding the respondent has been mentioned in the said response. Further it is understood that the necessary disclosures regarding the name designation and other particulars of the respondent has been made on the SEBI website in compliance with Section 4(1)(b) of the RTI Act and the same is in public domain. Hence I do not find any merit in the contention raised by the appellant. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 13 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA |
Petitions regarding change of date of birth to be dismissed on the grounds of delay and latches: Chhattisgarh High Court | The Petitions regarding change of date of birth to be dismissed on the grounds of delay and latches has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE GOUTAM BHADURI in the case of Budhram v. Coal India Ltd. and Ors. (Writ Petition No. 16 of 2022). Brief facts of the case are that the actual date of birth of the petitioner is 07.12.1957, but erroneously without considering the representation, which was made much prior before the date of retirement, the petitioner was made to retire on 30.09.2011, which was communicated to him on 15.02.2011. Learned counsel for the petitioner would submit that the petitioner was not given a proper opportunity of hearing for the reason that representations were filed to establish the fact that his date of birth is 07.12.1957, therefore, the said letter dated 15.02.2011 is erroneous and could not be given effect to. The respondents on the other hand contended that the petitioner stood retired back in the year 2011 and after much delay, this instant petition has been filed. There is no plausible explanation given by the petitioner to file the instant petition with enormous delay, as such, at this stage the representation of the petitioner could not be reconsidered. He placed reliance on the judgment of the Hon’ble Supreme Court in the case of Karnataka Rural Infrastructure Development Limited vs. T.P. Nataraja reported in 2012 SCC Online SC 767 and would submit that the like nature of petitions are required to be dismissed on the ground of delay and latches. The Court stated applying the aforesaid principle in the facts of this case, would reveal that the instant petition to set aside retirement with ancillary benefit has been filed with enormous delay. Furthermore, there is no plausible explanation given in the petition as to why the petition is grossly delayed by 10 years, therefore the petition stands dismissed. | Page AFRHIGH COURT OF CHHATTISGARH BILASPURWPS No. 122Budhram S o Dukalu Aged About 64 Years Dumper OperatorR o Village Singuldeeh Post Loharshi Police Station Shivrinarayan District Janjgir ChampaMob 6261359132 PetitionerVersus 1.Coal India Ltd. Through Its Chairman 10 Netaji Subhash RoadCalcutta2.South Eastern Coalfields Limited Chairman Cum ManagingDirector Seepat Raod Bilaspur District Bilaspur3.Sr. Area General Manager South Eastern Coalfields LimitedChirmiri Opencast Project P.O. Chirmiri District Koriya4.Sub Area Manager South Eastern Coalfields Limited Chirmiri Opercast Project P.O. Chirmiri District Koriya5.Area General ManagerSouth Eastern CoalfieldsLimited Kursiya Colliery Opencast Project P.O. Kursiya DistrictKoriyaRespondentsFor Petitioner: Mr. Vijay K Deshmukh AdvocateFor Respondents No.2 to 5: Mr. Vinod Deshmukh AdvocateHon ble Shri Justice Goutam BhaduriOrder On Board07.01.20221.Heard.2. The instant petition has been filed in the background of the factthat the actual date of birth of the petitioner is 07.12.1957 buterroneously without considering the representation which was made Page much prior before the date of retirement the petitioner was made toretire on 30.09.2011 which was communicated to him on 15.02.2011.3.Learned counsel for the petitioner would submit that thepetitioner was not given proper opportunity of hearing for the reasonthat representations were filed to establish the fact that his date of birthis 07.12.1957 therefore the said letter dated 15.02.2011is erroneous and could not be given effect to. He would furthersubmit that though several representationswere filedin the year 2011 much prior to the retirement but no cognizance wastaken and as such the retirement order which affects the right of thepetitioner would amounts to passing an order without giving anyopportunity of hearing to the petitioner. Therefore the order ofretirement of the petitioner is required to be set aside andconsequential benefits accrued to the petitioner should be given.4.Per contra learned counsel for the respondents No.2 to 5 wouldsubmit that the petitioner stood retired back in the year 2011 and aftermuch delay this instant petition has been filed. There is no plausibleexplanation given by the petitioner to file the instant petition withenormous delay as such at this stage the representation of thepetitioner could not be reconsidered. He placed reliance on thejudgment of the Hon ble Supreme Court in the case of KarnatakaRural Infrastructure Developmet Limited vs. T.P. Nataraja reportedin 2012 SCC Online SC 767 and would submit that the like nature ofpetitions are required to be dismissed on the ground of delay andlatches. Page .I have heard learned counsels for the parties and perused thedocuments. 6.The date of retirement of the petitioner was 30.09.2011. Thenotice for date of retirement on 30.09.2011 was given to the petitioneras per Annexure P 1 by communication dated 15.02.2011 i.e. muchprior to the date of retirement. It appears that the petitioner slept overhis right if any and accepted the retirement and only relied upon therepresentation which was filed in the year 2011. Almost 10 years havepassed by now. The Hon ble Supreme Court in the case of T.P.Natarajafor change of date of birth has observed thatapplication for change of date of birth can be rejected on the ground ofdelay and latches and furthermore when it is made at the fage end ofservice. At Para 10 of the judgment the Hon ble Supreme Court haslaid down the law which is reproduced hereunder:“10.Considering the aforesaid decisions of this Court the lawon change of date of birth can be summarized as under:(i)application for change of date of birth can only be as perthe relevant provisions regulations applicableJudges@if |
Indian Women face a misogynistic society with an entrenched cultural bias: Madras High Court | The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male-centric. A single judge bench of Justice P Velmurugan while adjudicating the matter in Maruthupandi v. The State [CRL.A.No.258 of 2019]; observed the conditions of women in a male dominated society. The respondent police registered the case against the appellant for the offence punishable u/s.417, 376 IPC and for the offence under Section 5(l) read with 6 of the Protection of Children from Sexual Offences (POCSO) Act, [hereinafter called as POCSO Act]. After completing the investigation, since the offence is against women, especially child, laid the charge sheet before the Special Court. The learned counsel for the appellant would submit that the appellant has not committed any offence as alleged by the prosecution. At the time of commission of the alleged offence, both the appellant and victim are minors and therefore, prosecuting the appellant under POCSO Act is not legally sustainable. Since the appellant was a minor at the time of alleged commission of offence and both the appellant and victim girl loved each other and lived together for more than four years and even at the time of trial, the victim girl filed an affidavit before the trial court that they are living together and also entered into compromise and so they wanted to compromise the matter. The learned trial Judge failed to appreciate the case on hand and the materials furnished in support of the same and not even considered the affidavit filed by the victim girl. Therefore, while they were in the adolescent stage, they loved each other and had physical contact and also lived together. Due to some misunderstanding, the victim girl filed the complaint before the respondent police and thereafter, the girl realized her mistake and she is living with the appellant and she wanted to withdraw her complaint and compromise the matter, however, the trial Judge failed to appreciate the facts and wrongly convicted the appellant, therefore, the judgment of the trial court is liable to be dismissed. | Crl.A.No.2519IN THE HIGH COURT OF JUDICATURE AT MADRASReserved On : 20.04.2021Delivered on : 30.04.2021CORAMTHE HONOURABLE MR. JUSTICE P.VELMURUGANCRL.A.No.2519and Crl.M.P.No.64519Maruthupandi .. Appellant.Vs.The State Rep.byInspector of Police All Women Police Station HarurDharmapuri District .. Respondent Criminal Appeal filed under Section 374of Code of Criminal Procedure to call for the records made in Spl.S.C.No.415 dated 12.04.2019 passed by the Sessions Judge Fast Track Mahila Court Dharmapuri. For Appellant:Mr.R.SankarasubbuFor Respondent:Ms.T.P.Savitha Govt. Advocateread with 6 of the Protection of Children from Sexual OffencesAct read with 6 of POCSO Act 312 417 IPC and also under section 4 of Tamil Nadu Prohibition of Harassment of Woman Act 1998.5. After framing of charges in order to prove the case of the prosecution on the side of the prosecution as many as 15 witnesses were Page No.3 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519examined as P.W.1 to P.W.15 18 documents were marked as Ex.P.1 to Ex.P.18 and no material object was exhibited. 6. After completing the examination of the prosecution witnesses incriminating circumstances culled out from the evidence of the prosecution witnesses and put before the appellant. He denied the same as false. On the side of the defence no oral and documentary evidence was let in. After completing trial and hearing the arguments of either side considering the material facts trial court found the appellant guilty of the charges and convicted the appellant for offence u s.5(l) read with 6 of POCSO Act and sentenced him to undergo 10 years rigorous imprisonment and imposed fine of Rs.5000 in default to undergo further imprisonment for a period of three months simple imprisonment and also awarded compensation of Rs.1 00 000 to the victim. Challenging the said conviction and sentence passed by the trial court the appellant accused has filed the present appeal before this court. 7. The learned counsel for the appellant would submit that the appellant has not committed any offence as alleged by the prosecution. At the time of commission of the alleged offence both the appellant and victim are minors Page No.4 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519and therefore prosecuting the appellant under POCSO Act is not legally sustainable. Since the appellant was a minor at the time of alleged commission of offence and both the appellant and victim girl loved each other and lived together for more than four years and even at the time of trial the victim girl filed an affidavit before the trial court that they are living together and also entered into compromise and so they wanted to compromise the matter. The learned trial Judge failed to appreciate the case on hand and the materials furnished in support of the same and not even considered the affidavit filed by the victim girl. Therefore while they were in the adolescent stage they loved each other and had physical contact and also lived together. Due to some misunderstanding the victim girl filed the complaint before the respondent police and thereafter the girl realized her mistake and she is living with the appellant and she wanted to withdraw her complaint and compromise the matter however the trial Judge failed to appreciate the facts and wrongly convicted the appellant therefore the judgment of the trial court is liable to be dismissed. 8. The learned Government Advocatewould submit that the victim has not completed 18 years. At the time of the occurrence the age of Page No.5 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519the victim was only 17 years and also at the time of giving complaint the age of the victim girl was 17 years and the age of the appellant was 20 years. The appellant committed penetrative sexual intercourse with the victim girl and though he promised to marry her subsequently he refused to marry her and therefore the victim girl gave the complaint to the respondent police. The respondent police investigated the matter and laid charge sheet. On the side of the prosecution totally 15 witnesses were examined and 18 documents were marked. Out of which the victim girl was examined as P.W.1 and the father of the victim girl was examined as P.W.3. The aunt of the victim was examined as P.W.2. The doctor who conducted medical examination on the victim girl was examined as P.W.4 and also the victim girl was produced before the Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C. A reading of the evidence of P.Ws.1 2 3 and 4 and also the statement recorded u s.164 Cr.P.C by the Judicial Magistrate clearly show that the appellant has committed the alleged offence and the trial court rightly appreciated the material evidence that the victim was child at the time of commission of offence under the POCSO Act.The appellant has committed repeated penetrative sexual assault on the victim and therefore the trial court has convicted the appellant for the offence u s.5(l) read with 6 of POCSO Act Page No.6 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519and since the other charge is under IPC and the POCSO Act is Special Act the appellant was sentenced only under POCSO Act. Therefore the appeal is liable to be dismissed. 9. The case of the prosecution is that the appellant committed penetrative sexual intercourse repeatedly with the victim girl and though he promised to marry her subsequently he refused to marry her and therefore the victim girl gave the complaint to the respondent police. The respondent police investigated the matter and laid charge sheet before the special court. The special court taken the case on file in Spl.S.C.No.415 and framed charges against the appellant for the offences under section 5(l) read with 6 of POCSO Act 312 417 IPC and also under section 4 of Tamil Nadu Prohibition of Harassment of Woman Act 1998. The date of birth of the victim girl is 24.06.1997 and the date of offence is 24.06.2014. So at the time of occurrence she was only 17 years and the victim is child under Section 2(1)(d) of POCSO Act.10. In order to prove the case of the prosecution totally 15 witnesses were examined and 18 documents were marked and after detailed analysis the Special Court convicted and sentenced the appellant as stated above. Page No.7 24 https: www.mhc.tn.gov.in judis Crl.A.No.251911. This Court being an Appellate Court is a fact finding court and it has to give its independent finding for which it has to re appreciate the entire evidence. Accordingly this court has re appreciated the entire evidence. 12. As per the prosecution evidence and also documents produced by the prosecution the victim girl is 17 years at the time of the offence as well as giving the complaint. In order to prove the age of the victim child prosecution marked Ex.P.7 School Certificate. As per Ex.P.7 the date of birth of the victim child is 24.6.1997. Victim in her evidence also deposed that her date of birth is 24.06.1997. In order to prove the same on the side of the prosecution Transfer certificate from the school where she studied was produced which is marked as Ex.P.17. So at the time of giving the complaint Ex.P.1 the age of the victim girl was 17 years and the occurrence is prior to that. Ex.P.17 Transfer certificate of the victim girl was also marked in which document the date of birth of the victim child is mentioned as 24.06.1997. Therefore it is proved that on the date of the complaint victim girl was child aged 17 years. Therefore during the occurrence the victim girl has not completed the age of 18 years. Therefore she is a child under the definition u s.2(1)(d) of POCSO Act. Therefore the offence committed by the appellant falls under POCSO Act. Page No.8 24 https: www.mhc.tn.gov.in judis Crl.A.No.251913. In order to prove the commission of offence prosecution examined victim as P.W.1. A reading of the evidence of the victim child shows that she lost her mother. The appellant was neighbour to her sister Narmadha. While going to her sister’s house she has seen him and while studying in the Government Girls Higher Secondary School Bommipatty the appellant also studied in the Boys Higher Secondary School Bommipatty. While going to school the appellant proposed his love to the victim. Initially she refused but he continuously followed the victim and also proposed his love. Thereafter the victim also accepted his proposal and loved each other. One day the appellant took the victim girl and tried to have intimacy with her. When she resisted he said he is going to marry her. Further he stated to her that since he is going to marry her it is not wrong to have physical relationship before the marriage and therefore he had physical contact with her and also he made a promise that he will marry her. Even after having sexual intercourse he made promise that he would marry her. So in that way 4 or 5 times they had sexual intercourse. Thereafter frequently they used to do it. Subsequently the appellant avoided to meet the victim and also victim father complained before the Panchayatdars. The appellant and his parents appeared before the Panchayatdars. Even though the appellant accepted about the intimacy with Page No.9 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519the victim he refused to marry her and therefore the victim child with no other option gave the complaint Ex.P.1. 14. A reading of the deposition of P.W.1 victim child would make it clear that she has narrated more than once that repeatedly the appellant had penetrative sexual intercourse with her. Aunt of the victim child was examined as P.W.2. She has also clearly deposed about the relationship between the victim and appellant and deposed that they loved each other and also she deposed that she had seen them together. She has stated that victim informed her that the appellant had sexual intercourse with her. She has also spoken that the victim got pregnant and the appellant provided pills for abortion and subsequently she also aborted the foetus and there was a Panchayat and since the Panchayat failed to resolve the issue victim preferred the complaint. 15. The father of the victim was examined as P.W.3 and the mother of the victim is no more. He has deposed that one day his daughter consumed poison and when he enquired she revealed that appellant loved the victim and promised to marry and based on the promise she allowed him to have sexual intercourse with her. But subsequently he refused to marry her and also spoken about the Panchayat. Since Panchayat could not resolve the Page No.10 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519issue complaint was lodged. After lodging of complaint the victim child was produced before the doctor for Medical examination. The doctor who conducted medical examination was examined as P.W.4. She has deposed that victim child was produced for medical examination on 09.05.2015. On clinical examination she found that hymen was not intact and her vagina allows two fingers. After registering the case the appellant was also produced before the doctor for conducting potency test. The doctor who conducted potency test on the appellant was examined as P.W.5 and he has deposed that the appellant was not impotent. Though the prosecution examined P.W.6 friend of the appellant in order to prove the case P.W.6 has not supported the case of the prosecution. 16. After registering the case victim child was also produced before Judicial Magistrate Dharmapuri for recording statement u s.164(5) Cr.P.C.The statement recorded by the Magistrate was marked as Ex.P.8. A reading of Ex.P.8 statement given by the victim child would go to show that she has narrated the events that appellant promised to marry her and had sexual intercourse but subsequently failed to marry her. Thereafter she came to know that the appellant made a false promise and had sexual intercourse Page No.11 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519with her but subsequently appellant refused to marry her. 17. Therefore the evidence of P.W.1 victim child and the evidence of doctor P.W.4 and the statement recorded by Judicial Magistrate Dharmapuri u s.164 Cr.P.C. Ex.P.8 and also the Accident Register Ex.P.3 the opinion of the Gynaecologist which also goes to show that hymen of the victim was not intact and she was subjected to sexual intercourse. Therefore the prosecution has proved its case that at the time of occurrence the victim girl was child as per Section 2(l)(d) of POCSO Act and the appellant has committed penetrative sexual intercourse repeatedly on the victim and thereby committed offence u s.5(l) read with 6 of POCSO Act. Though the charges were framed u s.312 417 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act 1998 the prosecution has also proved the case and the trial court also come to the conclusion that the appellant has committed the offence under all the charges. However he was sentenced to undergo 10 years rigorous imprisonment and imposed fine of Rs.5000 in default to undergo 3 months simple imprisonment for the offence under section 5(l) read with 6 of POCSO Act. This Court re appreciating the entire evidence also finds that the appellant has committed the offence as charged against him.18. The learned counsel for the appellant vehemently contended that the Page No.12 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519appellant was also minor at the time of commission of offence. Further he would submit that the victim girl and the appellant subsequently living together and they also entered into compromise and since in this case it is love affair it is not the intention of the appellant to have a forceful penetrative sexual intercourse it is consent of both the adolescent while loving each other having such an intimacy. There is no mensrea and there is no motive and the action committed by the appellant is not an offence punishable under POCSO Act. Even before the trial court the victim child filed an affidavit that she has compromised with the appellant and she has also filed the compromise memo. The trial Judge failed to consider the same and convicted the appellant. 19. A reading of the entire material papers available on record would make it clear that at the time of commission of offence the victim is a child. At the time of giving complaint the appellant completed 20 years. Even prior to that they had physical contact with each other. According to the victim girl the appellant proposed love she refused it but continuously he followed her. At last he obtained her consent. Since she was minor she does not know what she was doing and the appellant tried to have physical contact. She told him that it was wrong. But he stated that since he is going to marry her having Page No.13 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519physical contact is not wrong and also he repeatedly made false promise that he will marry her so that she should not resist him for the physical contact and that he had penetrative sexual intercourse with her several times. The appellant even after attaining age of 20 years also made a promise and had sexual intercourse with the victim child. But subsequently he refused to marry her. She consumed poison. Since she lost her mother father came to know that and called for panchayat. In the Panchayat the appellant accepted that he had sexual intercourse with victim but refused to marry her. Therefore the victim filed the complaint.20. Though the learned counsel for the appellant would submit that P.W.1 to 3 are interested witnesses the evidence of P.W.1 victim child and P.W.3 father are corroborated by P.W.4 doctor one who conducted medical examination clearly deposed that hymen was not intact and vagina allows two fingers and she was subjected to penetrative sexual intercourse. Victim child also gave statement before the Judicial Magistrate Dharmapuri. Therefore from the oral and documentary evidence the prosecution substantiated the case of the prosecution. Though the statement recorded u s.164 Cr.P.C. is not substantive evidence the victim child deposed before the court and while Page No.14 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519examining as P.W.1 her evidence was corroborated by P.W.2. which was supported by evidence of doctor P.W.4. Therefore under these circumstances this court also finds that the appellant committed the offence. Even though P.W.1 to 3 are stated to be as interested witnesses that may not be sole ground to discard the evidence of victim child and disallow the case of the prosecution.21. Though the learned counsel for the appellant would submit that during the adolescent age they had physical contact and though due to misunderstanding victim filed the complaint before the respondent police thereafter they are living together for the past four years. They also entered into compromise. The appellant also married the victim girl and also filed affidavit before this court and also memo of compromise and also filed Crl.M.P.No.32021. This court dismissed the said petition on 16.03.2021. This court already observed fall on love is not an offence. When the victim is child at the time of commission of offence any person having sexual intercourse with the minor child is an offence. Further any offence against child are offence against State the Courts and State are defacto guardians of children in the country. Once the complaint filed and the State Page No.15 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519taken the cognizance of the offence it is not compoundable offence. The appellant made a false promise and had sexual intercourse with victim child and subsequently failed to marry her. When she lodged a complaint in order to escape from the clutches of law after trial it is stated by the appellant that they are ready to live and ready to compound the offence and ready to marry the victim which statement will not take away the offence. Once the appellant has committed the offence under POCSO Act he is liable to be punished. Since it is a serious offence and grave in nature and an offence against women particularly child it is not compoundable offence. This court is not inclined to accept the version of the learned counsel for the appellant. The entire evidence show that the appellant has committed the offence. Now only in order to escape from clutches of law after trial he has come forward with compromise proposal which cannot be encouraged in heinous crime then it will defeat the object of POCSO Act. The trial court also rightly rejected the proposal of the victim.22. A careful reading of the entire materials show that the victim child categorically stated in the complaint before the doctor statement recorded under Section 164 Cr.P.C. and also the deposition while examining as witness Page No.16 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519before the court that the appellant promised to marry her and had penetrative sexual intercourse with her repeatedly and subsequently failed to marry her and tried to marry other girl. Therefore there was a panchayat. Even the Panchayat also not given any fruitful result. Therefore she lodged the complaint subsequently case was registered. So after trial in order to escape from the clutches of law and punishment the appellant convinced the victim girl and managed to file an affidavit for compromise which shows that the appellant has committed the offence u s.5(l) read with 6 of POCSO Act. Therefore since the offence is not compoundable offence even the request made by the victim cannot be accepted. 23. This Court finds it necessary to make few observation in the light of the recent guidelines formulated by the Honourable Supreme Court of India. The Honourable Supreme Court of India in the Judgment dated 18.03.2021 in Criminal Appeal No.3221 NO. 2531 OF 2021]DIARY NO. 20318 OF 2020) APARNA BHAT & ORS VERSUS STATE OF MADHYA PRADESH & ANR.] issued certain guidelines regarding imposition of bail conditions in a case involving a sexual offence against a women. The Supreme Court while dealing with the application seeking directions to all the High Courts and trial court to refrain Page No.17 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519from making observations and imposing conditions in rape and sexual assault cases at any stage of judicial proceedings that trivialize the trauma undergone by survivors and adversely affect their dignity in paragraph 9 of the Judgment pointed out to the case wherein this Court referred the case of rape of a minor to mediation and urged that no such observation condition should be made which initiates or encourages compromise. Paragraph 9 reads as follows: “9. The appellants also cite Mohan v. State where the Madras High Court had referred the case of rape of a minor to mediation and observed that the case was fit for attempting a compromise between the parties. Likewise Samuvel v. Inspector of Police is cited where the High Court of Madras referred to mediation a case of rape where the prosecutrix was a minor and had become a mother of a child as a consequence of rape because the accused agreed to marry her. It is urged that no observation condition should be made which initiates or encourages compromise that disparages and downgrades an otherwise heinous crime thus indicating that such offences are remediable by way of a compromise by marriage.”Page No.18 24 https: www.mhc.tn.gov.in judis Crl.A.No.251924.Before the Honourable Supreme Court the Attorney General who argued the matter submitted that the foremost aspect to facilitate a gender sensitive approach is to train judges to exercise their discretion and avoid the use of gender based stereotypes while deciding cases pertaining to sexual offences. Secondly judges should have sensitivity to the concerns of the survivor of sexual offences. It was also argued therein that in cases of sexual offences the concept of compromise especially in the form of marriage between the accused and the prosecutrix shall not be thought of as any such attempt would be offensive to the woman’s dignity. In the decision State of M.P. Vs.Madanlal 7 SCC 681] in paragraph 18 it is held as follows: “18. …We would like to clearly state that in a case of rape or attempt of rape the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation needless to emphasise is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled the “purest treasure” is lost. Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which Page No.19 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently it would be in the realm of a sanctuary of error.”25. In the offence of rape and sexual assault the decision in Ramphal Vs. State of Haryanaby order dated 27.11.2019 held that compromise is of no relevance in deciding the cases of sexual assault. The role of the courts and law enforcement agencies as neutral authorities and their duty to ensure fairness is observed as follows: 31. The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality at every stage in a criminal proceeding where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court by permitting discursive formations on behalf of the accused that seek to diminish his agency or underplay his role as an active participantof the crime could in many cases shake the confidence of the rape survivorin the impartiality of the court. The current attitude regarding crimes against women typically is that Page No.20 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519“grave” offences like rape are not tolerable and offenders must be punished. This however only takes into consideration rape and other serious forms of gender based physical violence. The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs biasabout the stereotypical role of women social and political structures that are heavily malecentric most often legal enforcement structures that either cannot cope with or are unwilling to take strict and timely measures. Therefore reinforcement of this stereotype in court utterances or orders through considerations which are extraneous to the case would impact fairness.32. Academic writings highlight that a judgment at all levels has a number of distinct audiences each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute what the law gives to or requires of them. At the same time in a legal system where judgments of courts set precedents and in particular within a common law system judgments have significance beyond their authoritative resolution of a specific dispute—particularly in the Supreme Court. Thus the judge is not only communicating to the parties their rights and liabilities in the context of the specific dispute being litigated the judge is also addressing the broader legal community other lawyers judges legal academics law Page No.21 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519students and indeed the public at large. “26. The Supreme Court held that “We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. … The courts are expected to use selfrestraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole where the victim of crime is discouraged the criminal encouraged and in turn crime gets rewarded!’”27. Under these circumstances this court finds that the appellant has committed the offence under Section 6 read with 7 of POCSO Act. Therefore this court does not find any merit in the appeal and accordingly this criminal appeal is dismissed. This Court by order dated 03.06.2019 granted bail and the sentence of imprisonment is suspended. Thereafter the interim bail granted has been extended. In view of the dismissal of the criminal appeal suspension of sentence granted by this court stands cancelled. The trial court is directed to secure the appellant accused to serve the remaining period of sentence. 30.04.2021.Page No.22 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519Index : Yes NoInternet : Yes NonvsriTo1.The Inspector of Police All Women Police Station Harur Dharmapuri District. 2.The Sessions Judge Fast Track Mahila Court Dharmapuri. 3.The Section Officer Criminal Section High Court Madras4.The Public Prosecutor Office High Court Madras.Page No.23 24 https: www.mhc.tn.gov.in judis Crl.A.No.2519P. VELMURUGAN J.nvsriCrl.Appeal.No.251930.04.2021Page No.24 24 |
Conviction under Sections 399 or 402 of IPC cannot be established for merely assembly outside a house with tools or weapons during the night: High Court of Orissa | Section 399 and Section 402 of the Indian Penal Code deal with making preparation to commit dacoity and assembling for purpose of committing dacoity respectively. For a conviction to be made under these sections it must be proven beyond doubt that actual steps were taken towards preparing for dacoity and that the assembly could only be with the purpose of committing dacoity and nothing else. This was held in the case of Jaganath Mundari v State of Odisha [JCRLA No. 75 of 2016] by a single member bench of the High Court of Orissa consisting of Justice S.K. Sahoo on 15th July 2021. As per the FIR, The appellant and his associates were found on 11th July 2010 discussing amongst themselves on the campus of DAV Public School by the side of a Bolero vehicle at around 11:00pm. Upon being searched and interrogated by the police, three masks, two billhooks and a screw driver were allegedly recovered from them. The trial court concluded that the screwdriver was meant to open the house of the principal and the mask and billhooks were going to be used to commit dacoity. As a result of this, the appellant and his associates were convicted for offences under Sections 399 and 402 of the Indian Penal Code for making preparation to commit dacoity and for assembling for purpose of dacoity by the trial court through the impugned judgement. In the present case the appellant challenged the trial court’s judgement and prayed for it to be set aside. The High Court of Orissa noted that preparation to commit dacoity consists in devising or arranging the means necessary for the commission of dacoity and it is necessary that some steps have been taken in the course of preparation for someone to be convicted under Section 399. The almost identical case of Chaturi Yadav v State of Bihar [AIR 1979 Supreme Court 1412] was cited where the Supreme Court declared that “The mere fact that these persons were found at 1 a.m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object” and “In these circumstances, therefore, we are unable to sustain the judgment of the High Court.” | IN THE HIGH COURT OF ORISSA CUTTACK JCRLA No. 75 Of 2016 From the judgment and order dated 04.11.2016 passed by the learned Addl. Sessions Judge Rourkela in Sessions Trial No.97 of Appellant Jaganath Mundari Versus State of Odisha ........ Respondent For Appellant: Ms. Mandakini Panda Mr. Sibani Sankar Pradhan Addl. Govt. Advocate For State: P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO Date of Hearing and Judgment: 15.07.2021 S.K. SAHOO J. The appellant Jaganath Mundari faced trial in the Court of learned First Addl. Sessions Judge Rourkela in Sessions Trial No.97 of 2011 for offences punishable under sections 399 and 402 of the Indian Penal Code on the accusation that on 11.07.2010 at about 11.00 p.m. he along with others were 2 found assembled near DAV Public School field Rourkela by keeping a Bolero jeep for the purpose of committing dacoity and making preparation for the said purpose. The learned Trial Court vide impugned judgment and order dated 04.11.2016 found the appellant guilty of both the charges and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.2 000 in default to undergo rigorous imprisonment for three months more for the offence under section 399 of the Indian Penal Code and rigorous imprisonment for three years and to pay a fine of Rs.1 000 in default to undergo rigorous imprisonment for two months more for the offence under section 402 of the Indian Penal Code and both the sentences were directed to run concurrently. The prosecution case in short as per the first information report lodged by Sadananda Pujahari Inspector of Police Uditnagar police station is that on 11.07.2010 at about 11.00 p.m. he received reliable information from his sources that some unknown persons had assembled in DAV Public School field keeping Bolero vehicle by their side and were planning to commit dacoity in the house of Principal DAV Public School. Getting such information P.W.6 entered the fact 3 in the Station Diary and in order to verify the veracity of the information he along with other police officials rushed to the spot by police jeep. On the way to the spot P.W.6 took two independent witnesses with them and they arrived at the spot at about 11.30 p.m. and found a group of persons were discussing among themselves by the side of a Bolero vehicle by burning a candle. They rounded them up and apprehended five persons. Being asked the persons assembled disclosed their identity and one of them was the appellant Jaganath Mundari and they could not account for their presence at such an odd hour of night. On personal search of those persons three black masks were found from the possession of the appellant and from possession of others two billhooks black masks and one screwdriver were found and those articles along with one half burnt candle match box and the Bolero vehicle were seized and seizure lists were prepared. P.W.6 drew up a plain paper F.I.R. at the spot which was ultimately registered as Uditnagar P.S. Case No.72 dated 12.07.2010. P.W.7 Tusil Majhi S.I. of Police attached to Uditnagar police station took up investigation of the case as per the direction of P.W.6 and after preparation of seizure lists of different articles three black masks 4 possession of the appellant under seizure list Ext.8 the apprehended persons the appellant and incriminating materials were brought to the police station. During course of investigation P.W.7 examined the witnesses and forwarded the accused persons to the Court and on completion of the formalities of investigation finding prima facie against the accused persons he submitted charge sheet against the appellant as well as one David Kandulana whose case was splitted up as he absconded while on bail and three children in conflict with law. The appellant was charge sheeted under sections 399 and 402 of the Indian Penal Code. After submission of charge sheet and commitment of the case to the Court of Session the learned trial Court framed charges against the appellant under sections 399 and 402 of Indian Penal Code on 01.10.2011 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. The defence plea of the appellant is one of denial. During course of trial in order to prove its case the prosecution examined as many as seven witnesses. 5 P.W.1 Surendra Nath Mallik was the constable attached to Uditnagar police station who stated about the seizure of vehicle and its documents under seizure list Ext.1. P.W.2 Prafulla Kumar Sahu was the A.S.I. of Police attached to Uditnagar police station who stated about the seizure of station diary under seizure list Ext.2 which was given in his zima vide Ext.3. P.W.3 Sk. Abdul Kalim was a Homeguard and driver attached to Uditnagar police station who stated that he along with the I.I.C. and other police officials proceeded to the spot in a police jeep which was driven by him and they arrived at the DAV Public School field where they found parking of white colour Bolero vehicle and five persons were sitting there and when they were surrounded they disclosed their names and some incriminating articles were seized from their possession and he also stated that the black colour cloths for using as mask were recovered from the appellant. P.W.4 Suleman Xess was the Constable attached to Uditnagar police station who stated that he produced the sanction order vide Ext.4. P.W.5 Banamali Bej was the S.I. of Police attached to Uditnagar police station who stated about the presence of the 6 appellant at the spot along with other co accused persons and seizure of black cloth pieces katari etc. from the possession of different accused persons. P.W.6 Sadananda Pujahari was the I.I.C. attached to Uditnagar police station who stated that he came to the spot along with other police officials and apprehended five accused persons including the appellant. He further stated about the seizure of three black masks from the possession of the appellant and other incriminating articles from the co accused officer of the case. P.W.7 Tusil Majhi was the Sub Inspector of Police attached to Uditnagar police station and he is the investigating The prosecution exhibited twelve numbers of documents. Exts.1 2 5 6 7 8 9 and 10 are the seizure lists Ext.3 is the zimanama Ext.4 is the sanction order Ext.11 is the first information report and Ext.12 is the xerox copy of the first information report of Bounsejore police station. The prosecution also proved ten material objects. M.Os.I and II are the Katuries M.O.III is the screw driver M.Os.IV to VIII are the masks M.O.IX is the half burnt candle and M.O.X is the match box. 7 The learned trial Court on the basis of materials available on record came to hold that since the members of the gang had assembled in the dead hour of night near a lonely place and were armed with deadly weapons and black masks and a screwdriver which is normally used to open houses and had actually proceeded to a place nearer to the scene of the contemplated dacoity i.e. the house of the Principal of the DAV Public School it is to be inferred that it was not a case of mere assemblage of persons but the members of the gang gathered and were ready for the actual commission of the crime. Ms. Mandakini Panda learned counsel for the appellant contended that even though in the first information report is mentioned that independent witnesses also accompanied the police party to the spot but none of them have been examined but the conviction of the appellant is based on the evidence of official witnesses. She argued that merely because three masks were found from the possession of the appellant and one screw diver two billhooks and other articles were found from the possession of other co accused persons it cannot be said that the prosecution has successfully established the charges against the appellant under sections 399 and 402 of the Indian Penal Code. 8 Mr. Sibani Sankar Pradhan learned Additional Government Advocate for the State on the other hand supported the impugned judgment and argued that it cannot be said that merely because the prosecution witnesses are all official witnesses no conviction can be sustained basing on their evidence particularly when no contradictions are appearing in their evidence. The facts proved by the evidence and the prosecution witnesses give rise to a reasonable inference of the fact that the appellant and other accused persons had assembled for the purpose of committing dacoity and that in preparation for the same they had brought black masks arms screwdriver with them and the said inference does not appear to have been rebutted by the appellant. If the appellant had assembled there for any other purpose it was within his knowledge which he could have explained but the appellant has not adduced any evidence to show that it was his lawful assemblage at that place. The appellant did not show that the object for which he had assembled was not that of committing dacoity and therefore the appeal should be dismissed. Before adverting to the contentions raised by the learned counsel for the respective parties while going through the evidence of the witnesses it appears that P.W.1 Surendra 9 Nath Mallik stated about the seizure of the vehicle and its documents under seizure listP.W.2 Prafulla Kumar Sahu stated about the seizure of station diary entry which was given in his zima. P.W.3 stated that he along with the I.I.C. and other police officials proceeded to the spot in a police jeep which was driven by him and they arrived at the DAV school field where they found parking of white colour Bolero vehicle and five persons were sitting there and when they were surrounded they disclosed their names and some incriminating articles were seized from their possession. He specifically stated that black colour cloths for using as masks were recovered from the appellant. P.W.5 stated about his arrival at the spot on the date of occurrence at about 11.30 p.m. and he also stated about the presence of the appellant at the spot along with other co accused persons and seizure of black cloth pieces katari etc. from the possession of different accused persons. P.W.6 the I.I.C. of Uditnagar police station stated about the apprehension of the five accused persons including the appellant at the spot and also about the seizure of three black masks from the possession of the appellant and other incriminating articles from the co accused persons. P.W.7 the Investigating Officer also stated to have accompanied P.W.6 and others to the spot and he 10 has also stated in a similar manner like P.W.3 P.W.5 and P.W.6 regarding the seizure of black masks from the possession of the appellant. Even though on the seizure of black masks from the possession of the appellant nothing has been brought out in the cross examination in the evidence of any of the witnesses to disbelieve the same and the presence of the appellant in the scene of occurrence is also established through the evidence of the official witnesses the question which comes up for consideration is can it be said on the basis of the available materials on record that the ingredients of the offences under section 399 and 402 of the Indian Penal Code are satisfied. Section 399 of the Indian Penal Code deals with making preparation to commit dacoity and section 402 of the Indian Penal Code deals with assembling for purpose of committing dacoity. There is manifestly a distinction between the offences under section 399 and section 402 of the Indian Penal Code. The offence under section 402 of the Indian Penal Code is complete as soon as five or more persons assemble together for the purpose of committing a dacoity. Preparation for committing a dacoity may take place before or after the dacoits assemble together. Preparation consists in devising or arranging the means necessary for the commission of an offence. Though the 11 offence falling under section 402 of the Indian Penal Code and the offence falling under section 399 of the Indian Penal Code would probably involve almost similar ingredients the only difference is that under section 402 of the Indian Penal Code mere assembly without any preparation is enough to attract the offence whereas section 399 of the Indian Penal Code is attracted only if some additional steps are taken in the course of In an identical factual scenario in the case of Chaturi Yadav and others Vrs. State of Bihar reported in A.I.R. 1979 Supreme Court 1412 wherein the accused persons were found assembled at a lonely place in the school premises who were detected by the police patrol party and on seeing the police party some of the accused persons ran away but some of the accused persons were caught and from their possession guns and live cartridges were found and they were found guilty by the learned trial Court under sections 399 402 of the Indian Penal Code and their conviction were confirmed in appeal by the Patna High Court but their Special Leave to Appeal was allowed by the Hon’ble Supreme Court and the judgment of the conviction was set aside and the appellants were acquitted of 12 all the charges. The relevant portion of the decision is quoted herein below: “4. The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted prosecution case at its face value there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not by itself prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself has in its judgment observed that the school was quite close to the market hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of 13 committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances therefore we are unable to sustain the judgment of the High Court.” Though merely because the independent witnesses were not examined the evidence of the official witnesses cannot be discarded and even though in view of the available materials on record it can be said that the prosecution has successfully established that the appellant along with four other persons assembled in a lonely place i.e. the field of DAV Public School in the odd hour of night i.e. around 11.00 p.m. on 11.07.2010 and from the possession of the appellant three black masks were seized and from the possession of the co accused persons axe screwdriver and other incriminating materials were found but in my humble view that by itself cannot be sufficient to hold that 14 that the appellant had assembled there for the purpose of committing dacoity or was making preparation to accomplish that object. It cannot be said that the articles seized from the possession of the appellant and the co accused persons can be utilised only for the purpose of committing dacoity and for no other offence. The prosecution must prove from the evidence directly or indirectly or from attending circumstances that the accused persons had assembled for no other purpose than to make preparation for commission of dacoity. If the evidence falls short of it the case must fail. It is for the prosecution to establish that the appellant had conceived a design for committing dacoity. Of course if the legitimate inference can be drawn from the circumstances which are established in the case that the appellant and other accused persons had the intention to commit dacoity it will be for them to prove that their intention was different. The aid of section 106 of the Evidence Act can be taken in a criminal trial only when the prosecution has led evidence which if believed will sustain a conviction or which makes out a prima facie case. Unless this is done no burden of proving anything would lie on the accused. If there is any fallacy in explaining his position on the part of the appellant that would not absolve the prosecution from its primary 15 obligation to make out a prima facie case under sections 399 and 402 of the Indian Penal Code against the appellant. The possibility that the appellant and other accused persons getting assembled for committing some other offences at that point of time cannot be safely eliminated. In view of the foregoing discussions it is very difficult to accept that the prosecution has successfully established the charges against the appellant and therefore the impugned judgment and order of conviction cannot be sustained in the eye of law. Accordingly the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant and the sentence passed thereunder is hereby set aside and the appellant is acquitted of the charges under sections 399 and 402 of the Indian Penal Code. It appears that the appellant was forwarded to Court after his arrest on 12.07.2010 and he was also released on bail but after his conviction he was sent to judicial custody by the learned trial Court on 04.11.2016. It further appears that he has not moved any application for bail in this appeal. The appellant shall be set at liberty forthwith if his detention is not otherwise required in any other case. 16 Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action. S.K. Sahoo J. .................................. Orissa High Court Cuttack The 15th July 2021 RKMishra |
Acquittal of petitioner for offences U/S.3 /4 of the Dowry Prohibition Act on technical ground, create no effect on his conviction U/S.498 of IPC: High Court of Jharkhand | The mere fact that the petitioner was acquitted for the offence under Section 3/4 of the Dowry Prohibition Act on the technical ground of lack of sanction for prosecution has no bearing or effect on the aforementioned concurrent findings leading to the petitioner’s conviction under Section 498 A of the IPC. The judgment was passed by The High of Court Jharkhand in the case of Munna Ansari @ Md. Munna Ansari vs The state of Jharkhand [Cr. Revision No. 298 of 2012] by Single Bench consisting of Hon’ble Shri Justice Anubha Rawat Choudhary. Facts of the case are that it is alleged that at the time of settlement of marriage, the accused persons had again demanded an amount of Rs.50,000/- like cash, which could not be fulfilled by the father of the informant, and she was treated with cruelty both mentally and physically. Accordingly, the complaint was filed, which was sent to the concerned police station for investigation under Section 156 (iii) C.r.P.c and the charge-sheet was submitted under Section 498A/34 of the Indian Penal Code and Section 3 / 4 of the Dowry Prohibition Act. Learned Counsel on behalf of the petitioner has submitted that most of the witnesses are the relative of the lady and accordingly, the learned court below has not scrutinized the evidence of the prosecution witnesses properly. She has submitted that although there is an allegation of harassment, the demand of dowry has not been proved before the learned court below. She submits that as the demand of dowry was not proved, therefore, the learned appellate court had acquitted the petitioner for an alleged offence under Section 3/4 of the Dowry Prohibition Act. Learned Counsel submits that the acquittal was done by the learned appellate court on the technical ground that the sanction for prosecution was not available and therefore the conviction under Section 3/4 of the Dowry Prohibition Act, 1961 could not be sustained, although the basic ingredients for the offence were present. He submits that in the case records, the basic ingredients for an offence under Section 498A of IPC is made out and the present criminal revision application is fit to be dismissed. While partly allowing the petition, this Court finds that “the learned courts below in their concurrent findings, found that demand of dowry of Rs.50,000/- was made by the petitioner and there was torture of the informant on account of non-fulfilment of the demand from her parents’ side. This Court is of the considered view that merely because the petitioner has been acquitted for the offence under Section 3 /4 of the Dowry Prohibition Act on the technical ground of absence of sanction for prosecution, the same does not create any impact or doubt on the aforesaid concurrent findings leading to the conviction of the petitioner under Section 498 A of IPC.” This Court is of the considered view that there is no illegality or perversity in the impugned judgements calling for any interference in revisional jurisdiction, so far as the conviction of the petitioner under Section 498 of IPC is concerned. | Anubha Rawat Choudhary J.: IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 2912 … … Versus … … Opp. Party Munna Ansari @ Md. Munna Ansari The State of Jharkhand CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Party C.A.V On: 22 03 2021 Ms. Rakhi Sharma Amicus Curiae Mr. Shekhar Sinha Advocate Pronounced On: 12 04 2021 1. Heard Ms. Rakhi Sharma learned Amicus Curiae appearing on behalf of the petitioner and Mr. Shekhar Sinha learned counsel appearing on behalf of the opposite party State. 2. The present revision application is directed against the Judgment dated 30th January 2012 passed by the learned Principal Sessions Judge Giridih in Cr. Appeal No. 33 of 2011 whereby the learned Appellate Court has dismissed the appeal preferred by the petitioner so far as his conviction under Section 498A of the Indian Penal Code is concerned. However the learned Lower Appellate Court has acquitted the petitioner for offence under Sections 3 4 of the Dowry Prohibition Act 1961. 3. The learned Trial Court had convicted and sentenced the petitioner vide Judgment dated 20.7.2011 for the offence under Section 498A of the Indian Penal Code for simple imprisonment for a period of six months and a fine of Rs.500 and also for offence under section ¾ of Dowry Prohibition Act for simple imprisonment of six months. The Trial Court’s Judgment was passed by the learned Sub Divisional Judicial Magistrate Giridih. Arguments for the Petitioner. 4. Learned amicus curiae appearing on behalf of the petitionerhas submitted that most of the witnesses are the relative of the lady and accordingly the learned court below has not scrutinized the evidences of the prosecution witnesses properly. She also submits that P.W. 5 is a doctor who has stated that there was no external injury found in her body and she only complained of body pain. She has submitted that although there is allegation of harassment but the demand of dowry has not been proved before the learned court below. She submits that as the demand of dowry was not proved therefore the learned appellate court had acquitted the petitioner for alleged offence under Section 3 4 of the Dowry Prohibition Act and since the petitioner was acquitted for offence under Section 3 4 of the Dowry Prohibition Act therefore the offence under Section 498A of the Indian Penal Code is also not made out. She has further submitted that there is no specific date of incident mentioned in the evidence and the victim has stated that she was tried to be burnt pouring kerosene and the neighbor had saved her but none of the neighbor has come forward for the prosecution evidence. 5. The learned amicus curiae has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sushil Kumar Sharma Vs. Union of India and Others reported in 6 SCC 281 para 19 to submit that there has been abuse in making allegations under Section 498A of I.P.C. regarding which judicial notice has been taken by the Hon’ble Supreme Court as well. She has also relied upon judgment passed by the Hon’ble Supreme Court in the case Wasim Vs. State NCT of Delhi) of reported in7 SCC 435 para 12 to submit that the basic ingredients for offence under Section 498A of I.P.C. has not been satisfied in the present case. 6. The learned amicus has further submitted that the entire allegation was levelled by the informant of the case as she was the Para Teacher and she wanted the petitioner to live with her at her working place and she was never interested in going to her in laws’ house and continue the matrimonial relationship. She submits that the petitioner has been falsely implicated in this case and the impugned judgment of conviction and sentence is perverse and is fit to be set aside. 7. During the course of hearing it transpired from the records that the petitioner had surrendered before the learned court below during the pendency of this case on 30.10.2012 and was released on bail on Arguments of the opposite party State 8. The learned counsel appearing on behalf of the opposite party State while opposing the prayer has submitted that in the case of concurrent findings of fact there is no scope for re appreciation of evidences on record and the victim and other witnesses have fully supported the prosecution case who have been fully cross examined by the defence and the learned court below had appreciated the evidences on record. So far as the acquittal of the petitioner for offence under Section 3 4 of the Dowry Prohibition Act 1961 is concerned he submits that the acquittal was done by the learned appellate court on the technical ground that the sanction for prosecution was not available and therefore the conviction under Section 3 4 of the Dowry Prohibition Act 1961 could not be sustained although the basic ingredients for the offence was present. He submits that in the case records the basic ingredients for offence under Section 498A of IPC is made out and the present criminal revision application is fit to be dismissed. 9. During the course of hearing the learned amicus appearing on behalf of the petitioner has also indicated that in case this Court is not inclined to set aside the conviction and sentence then the sentence of the petitioner be modified to some extent as the incident is of the year 2004 and more than 16 years have elapsed. 10. To this submission the learned counsel for the opposite party State has submitted that if in case any sentence is modified then under such circumstances some heavy fine amount be imposed to the petitioner and sentence may not be less than three months. Findings of this Court. 11. As per the prosecution case the informant is the wife of the petitioner married on 07.06.2001. It has been stated that at the time of marriage the petitioner was given cash ornaments a motorcycle and several other articles. It is alleged that at the time of settlement of marriage the accused persons had again demanded an amount of Rs.50 000 as cash which could not be fulfilled by the father of the informant. The informant went to her matrimonial home then again the said demand of cash was started from 18.10.2001 and she was treated with cruelty both mentally and physically. When she informed her father then Rs.25 000 was given to the petitioner who purchased a tractor but the behavior of the petitioner and her in laws did not change and again on 15.10.2003 a written complaint was given by the the Superintendent of Police. Thereafter again conciliation took place at Dhanwar police station and the informant started living with her husband. Meanwhile a child was also born. It has been further alleged that on 03.03.2004 all the accused persons conspired altogether to burn the informant caught hold of her and her husband started pressing her neck. She was also assaulted by leg and fists and her husband pressed her chest forcefully then she became unconscious. Thereafter her husband sprinkled kerosene oil on her body and other accused persons caught hold of her and when she raised alarm the neighbor assembled there and saved her life. It has also been alleged that the accused snatched ornaments worth Rs.25 000 and had driven the informant away from her matrimonial home. Anyhow she returned back to her parent’s home and got herself treated by Dr. Anil Kumar. She filed an application with injury report before the Superintendent of Police Giridih on 06.03.2004. On 18.03.2004 the informant’s husband came to her parents place and threatened to kill her. Accordingly the complaint was filed which was sent to the concerned police station for investigation under Section 156 Cr.P.C. On the basis of the information given by the informant a case was registered asP.S Case No. 1204 dated 24.7.2004 and the charge sheet was submitted under Section 498A 34 of the Indian Penal Code and Section 3 4 of the Dowry Prohibition Act. Altogether there were four accused and thereafter in the same case the charge sheet was further submitted against three more persons and both the charge sheet were merged and trial commenced against altogether seven accused persons including the petitioner. However accused Suleman Ansari absconded and his case was split up from others and remaining six accused faced the trial. During the course of trial altogether seven witnesses were examined. After closure of the prosecution evidence the statements of the accused persons were recorded under Section 313 of the Cr.P.C and the accused persons claimed themselves to be innocent. The defence also examined one defence witness as D.W.1. 13. P.W.6 is the informant herself. She has fully supported the prosecution case in her examination in chief and stated that she got married with the accused Munna Anasari in the year 2001 and has got a child from their wedlock but after some time her husband and the other members of his family started demanding Rs.50 000 as dowry and when she denied then they used to assault her. She has further stated that her father gave Rs.25 000 under compulsion to her husband for the purchase of a tractor but accused were not satisfied with the same and again demanded Rs.50 000 and when her father expressed his inability to fulfill the said demand the accused persons tortured and assaulted her and later on tried to burn her by sprinkling Kerosene Oil. Ultimately the accused drove her out with her child from her matrimonial house and she came back to her parents’ house. She was thoroughly cross examined and there was no material contradiction. However she admitted that her husband helped her during the course of her treatment when she fell ill. She also alleged that during her stay in matrimonial house her husband tortured her for non fulfillment of demand of dowry. 14. P.W.2 is the brother of the informant who has fully supported the prosecution case and has stated that there was a demand of Rs.50 000 as dowry and the accused persons tortured the informant. He has also stated that in compulsion his father had given a sum of Rs.25 000 to the petitioner husband for taking a tractor and after some time petitioner again demanded a cash of Rs.50 000 as dowry which was not fulfilled by his father. As a result of non fulfillment of the demand of dowry the accused persons started abusing and assaulting the complainant informant and lastly due to their torture the informant left her in laws place and returned back to her parents’ place. This witness was thoroughly cross examined by the defence and he had stated during his cross examination that no assault had taken place in his presence. He has also stated that the informant is a Para Teacher and wanted to stay with her husband but her husband was not ready to live with her at the place of her service. P.W.3 is the father of the informant who has also fully supported the prosecution case and his evidence is in line with the evidence of P.W.2 and P.W 6 which is apparent from the recording of the evidence by the learned court below. He has also stated that during the course of committing torture upon the informant the accused persons tried to burn the informant by sprinkling kerosene oil but they did not succeed and she was rescued with the help of her neighbor. This witness was also thoroughly cross examined by the defence and as per the learned Trial Court there were no contradictions in the evidence of P.W.3. The learned Trial Court also recorded that P.W.4 had also supported the evidence of the prosecution witnesses without any contradictions and was also cross examined. 16. P.W.5 is the Doctor who had proved the injury report marked as Exhibit 1 and has stated that at the time of examination of the informant she complained of pain which she sustained during the course of assault made by the accused persons. P.W.7 is the Investigating Officer of the case who has submitted the charge sheet in this case and has also supported the prosecution case. He has stated that all the prosecution witnesses had supported the prosecution case in the statements made before him. He has proved the formal FIR as Exhibit 2. 18. The petitioner was examined as a witness by the defence who stated that the petitioner was ready to keep his wife with him but his wife does not want to live with him. He has also stated that his wife is a Para Teacher and wants to live separately. Though the petitioner tried to reside with his wife but she is not willing to stay with him. He has denied the allegations made by the prosecution. 19. The learned trial court recorded that the examined witnesses have not specified the name of other accused persons except the name of the petitioner husband in the involvement of commission of torture or assault made to the victim informant for demand of Rs.50 000 as dowry and held the petitioner guilty of offence under Section 498 A of IPC as well as for offence under Section ¾ of Dowry Prohibition Act and acquitted rest of the accused who faced the trial by giving them benefit of doubt. The learned trial court sentenced the petitioner for simple imprisonment for each of the offences with fine of Rs.500 for offence under Section 498A of IPC. 20. The learned Appellate Court also scrutinized all the evidences on record and also considered the arguments advanced on behalf of the parties and recorded the finding that it appeared that all the prosecution witnesses have proved about the demand of dowry of Rs.50 000 and the informant was tortured by the petitioner husband. It further appeared that the petitioner had not only assaulted her but also attempted to set her ablaze. The learned Lower Appellate Court found that the prosecution has fully established the charges under Section 498A IPC against the petitioner husband. So far as the conviction under Section 3 4 of the Dowry Prohibition Act is concerned the learned Lower Appellate Court acquitted the petitioner on the technical ground on account of absence of sanction for prosecution under the provisions of Dowry Prohibition Act. Since this finding of the learned appellate court is not under challenge this Court is not deliberating any further on the legality or otherwise of the same. It has been argued that the petitioner having been acquitted for offence under Sections 3 4 of Dowry Prohibition Act 1961 his conviction under Section 498A of Indian Penal Code cannot be sustained. The aforesaid argument of the learned amicus is devoid of any merit in view of the fact that the petitioner has been acquitted for offence under Sections 3 4 of Dowry Prohibition Act 1961 by the learned appellate court on the point of technical ground of absence of sanction for prosecution under the said Act. So far as the ingredients of the offence under Section 498A of Indian Penal Code read with explanation thereof is concerned this Court finds that there are consistent findings recorded by the learned courts below regarding harassment of the informant wife at the hand of the present petitioner with the view to coercing her her father to meet unlawful demand of money and such harassment was on account of failure by her her father to meet such demand. All the prosecution witnesses have supported the demand of Rs.50 000 by the petitioner. In such circumstances this Court is of the considered view that the basic ingredients of offence under Section 498A of Indian Penal Code was fully satisfied and the learned courts below have given consistent findings and have rightly convicted the petitioner. 22. The learned Amicus has also referred to certain contradictions in the evidences on record by stating that it was the informant herself who wanted to stay separately with her husband and not with her in laws. During her cross examination she had stated that in the course of her treatment her husband had helped her. So far as the assault upon the informant is concerned the learned Amicus has referred to the evidence of P.W. 2 who in his cross examination had stated that no assault had taken place in his presence and had also stated that the informant is a para teacher and she wants to live with her husband but the petitioner is not ready to live with her at the place of her service. The learned Amicus has submitted that the Doctor did not find any external injury on the body of the informant. The learned Amicus has also submitted that no independent witness or any neighbor has been examined. 23. This Court is of the view that the learned courts below have duly scrutinized the evidences on record and the informant who is the victim of the case has fully supported the prosecution case and was thoroughly cross examined. The other material witnesses also supported the prosecution case and were also thoroughly cross examined. Merely because there is no independent witness the same by itself does not make the impugned judgments illegal irregular or perverse particularly when the prosecution witnesses have fully supported the prosecution case and the defence has duly cross the prosecution witness and there was no material their evidences. So far as appreciation of evidence of the doctor is concerned merely because there was no external injury found on the body of the informant when she was examined by the doctor the same does not create any doubt in the prosecution case as the doctor had proved the injury report as Exhibit 1 and stated that at the time of examination the informant complained of pain which she sustained during the course of assault made by the accused persons. Further this Court also finds that the informant was examined by the doctor after she had returned from her matrimonial house to her parents house. 24. This Court finds that the learned Amicus has not been able to demonstrate any illegality or irregularity or perversity in the impugned judgments and there is no scope for reappreciation of the evidences on record to come to a different finding. 25. So far as the judgment relied upon by the learned Amicus Curiae passed in the case of Wasim v. Statereported in7 SCC 435 is concerned it has been held in para 12 of the said judgment that conviction under Section 498A of Indian Penal Code is for subjecting the women to cruelty. It has been held in para 12 as follows: “12. Conviction under Section 498 A IPC is for subjecting a woman to cruelty. Cruelty is explained as any wilful conduct which is likely to drive a woman to commit suicide or to cause grave injury or danger to life limb or health. Harassment of a woman by unlawful demand of dowry also partakes the character of “cruelty”. It is clear from a plain reading of Section 498 A that conviction for an offence under Section 498 A IPC can be for wilful conduct which is likely to drive a woman to commit suicide OR for dowry demand. Having held that there is no evidence of dowry demand the trial court convicted the appellant under Section 498 A IPC for his wilful conduct which drove the deceased to commit suicide. The appellant was also convicted under Section 306 IPC as the trial court found him to have abetted the suicide by the In the said judgement the learned trial court had convicted the appellant under Sections 498A and 306 of Indian Penal Code and the High Court had acquitted the appellant for offence under Section 306 of Indian Penal Code and upheld the conviction under Section 498A of Indian Penal Code. In the said judgment before the Hon’ble Supreme Court on the one hand the High Court had recorded a finding that neither mental nor physical cruelty was proved and on the other hand convicted the appellant under Section 498A of Indian Penal Code by holding that the prosecution proved dowry demand by the appellant immediately after the marriage. It was observed that this finding was recorded by the High Court without detailed discussion of evidences on record especially when the trial court found that there was no material on record to show that there was any demand of dowry and the High Court did not refer to such findings of the learned trial court and record reasons for its disapproval. The said judgment does not apply to the facts and circumstances of this case as the basic ingredient for offence under Section 498A IPC read with explanationthereof are proved and concurrent findings on the point have been given in the impugned judgments passed by the learned courts below. 26. This Court finds that the learned courts below in their concurrent findings found that demand of dowry of Rs.50 000 was made by the petitioner and there was torture of the informant on account of non fulfillment of the demand from her parents side. This Court is of the considered view that merely because the petitioner has been acquitted for the offence under Section 3 4 of the Dowry Prohibition Act on technical ground of absence of sanction for prosecution the same does not create any impact or doubt on the aforesaid concurrent findings leading to conviction of the petitioner under Section 498 A of IPC. This Court is of the considered view that there is no illegality or perversity in the impugned judgements calling for any interference in revisional jurisdiction so far as the conviction of the petitioner under Section 498 A IPC is concerned. 27. This Court also finds that so far as the sentence of the petitioner is concerned the petitioner has faced the criminal case since the year 2004 and more than 16 years has elapsed and accordingly ends of justice would be served by modification of the sentence to some extent. Accordingly the sentence of the petitioner is modified by reducing the sentence of imprisonment to three months and enhancing the fine amount to Rs.50 000 to be deposited by the petitioner before the learned court below within a period of two months from the date of communication of this order. The amount so deposited is directed to be remitted to the victim girl after due identification. In case of non deposit of the fine amount within the aforesaid time frame the bail bond furnished by the petitioner will be immediately cancelled and the petitioner would serve the sentence already imposed by the learned courts below for offence under Section 498 A of IPC. 28. This criminal revision application is disposed of with aforesaid modification of sentence. 29. Pending interlocutory applications if any are closed. 30. This Court observes that vide order dated 08.03.2021 Ms. Rakhi Sharma Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to her within a period of 4 weeks upon submission of bills by her. 31. Office is directed to provide a copy of this order to Ms. Rakhi Sharma the learned Amicus Curiae and also to the Secretary Jharkhand High Court Legal Services Committee 32. Let the lower court records be sent back to the court concerned. 33. Let this order be immediately communicated to the learned court below through FAX e mail. |
Eviction by the Tribunal should only be an incident of the enforcement of the right to maintenance and protection under the 2007 Act : Bombay High Court | The elderly parents, citizens and women are justly protected by the law under the provisions of several Acts to ensure that they aren’t exploited, however the same provisions shouldn’t be manipulated. This was held in the judgment passed by a two-bench judge comprising JUSTICES UJJAL BHUYAN & MADHAV J. JAMDAR, in the matter Ritika Prashant Jasani V. Anjana Niranjan Jasani and others, dealt with an issue where the petitioner filed for an appeal against the legality and validity of the order dated 15.12.2020 passed by the Deputy District Collector, Mumbai City acting as the Presiding Officer of the Tribunal for Maintenance and Welfare of Parents and Senior Citizens. Respondent is the mother-in-law of the petitioner. Petitioner along with her husband Mr. Prashant Niranjan Jasani and minor daughter Samaira are residing in a flat in Mumbai along with her mother in law. The said flat originally belonged to Mr. Anandlal Jasani, who during his lifetime made nomination in respect of the said flat whereby twenty percent share of the flat was granted in favour of petitioner’s husband Mr. Prashant. The petitioner claims the said flat to be her matrimonial home as well as her shared household. Petitioner has stated that her husband Prashant Niranjan Jasani is suffering from mental illness and depression because of which he requires regular treatment and counselling. He is not in a position to contribute to the earnings of the family. Allegation of the petitioner is that respondent wants to sell the said flat and thereafter to retain the sale consideration to herself so as to enable her to lead an affluent lifestyle. Petitioner and her husband are opposed to selling of the flat. Petitioner states that the said flat is not self-acquired property of respondent; rather it is an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband, petitioner and their minor daughter have equal right, title and interest. Respondent No.1 filed a complaint before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband Prashant Jasani from the flat so as to allow her to reside in the flat all by herself. Tribunal by order allowed the complaint of respondent and ordered petitioner and her husband to vacate and to hand over possession of the said flat to respondent within 60 days from the date of receipt of the said order failing which it was stated that they would be evicted from the flat by use of force. | IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2631 OF 2021 Ritika Prashant Jasani Anjana Niranjan Jasani and others Mr. Kishor Maru for Petitioner Mr. Anoshak Daver a w. Ms. Kausar Banatwala Ms. Neuty Thakkar and Ms. Tanishka Desai i b. Mr. Tushar Goradia for Respondent No.1 Ms. Anjana N. Jasani Respondent in person Ms. Ritika Jasani Petitioner in person CORAM : UJJAL BHUYAN MADHAV J. JAMDAR JJ Reserved on Pronounced on : AUGUST 13 2021 JULY 15 2021 JUDGMENT AND ORDER :along with respondent No.1. The said flat MINALSANDIPPARABDigitally signedby MINALSANDIP PARABDate:2021.08.1311:41:51 +0530 WP2631_21.doc originally belonged to Mr. Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby twenty percent share of the flat was granted in favour of petitioner’s husband Mr Prashant Niranjan Jasani Mr. Anandlal Jasani died in the year 2007 whereafter his son Mr. Niranjan Anandlal Jasani Mrs. Anjana Niranjan Jasani and Mr. Prashant Niranjan Jasani alongwith other legal heirs of the deceased Mr. Anandlal Jasani were entitled to equal rights and shares in the said Be it stated that Mr. Niranjan Anandlal Jasani is the father in law of the petitioner i.e. father of Mr. Prashant Jasani and husband of Anjana Niranjan Jasani i.e. respondent No.1 Since her marriage with Mr. Prashant Jasani petitioner has been residing in the said flat alongwith respondent No.1 and the late Niranjan Anandlal Jasani till his death. Be it stated that Mr. Niranjan Anandlal Jasani died intestate at Mumbai on 11.04.2016. Therefore petitioner claims the said flat to be her matrimonial home as well as her shared household. Petitioner her husband daughter and respondent No.1 are residing in the said flat It is stated that petitioner and respondent No.1 earns income mainly from the following sources : Rent from the office premises at Arun Chamber Tardeo for Rs.35 000 per month From the interest accrued on the shares which would be about Rs.30 000 per month Respondent No.1 is carrying on catering business on a limited scale earning therefrom Rs.10 000 to Rs.15 000 per month Petitioner has stated that her husband Prashant Niranjan Jasani is suffering from mental illness and depression because of which he requires regular treatment and counseling. He is not in a position to contribute to the earnings of the family 8.2. Allegation of the petitioner is that respondent No.1 wants to sell the said flat and thereafter to retain the sale consideration to herself so as to enable her to lead an affluent lifestyle. Petitioner and her husband are opposed to selling of the flat. Petitioner states that the said flat is not self acquired property of respondent No.1 rather it is an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband petitioner and their minor daughter have equal right title 8.3. Respondent No.1 with an oblique motive to oust the petitioner her husband and minor daughter from the flat filed a complaint dated 26.04.2019 before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband Prashant Jasani from the flat so as to allow her to reside in the flat all by herself. Petitioner filed her objection dated 08.12.2020. She denied all the allegations levelled against her and her husband by respondent No.1 According to her respondent No.1 has high expectations from life and she has always loved luxury. She has very rich friends and her daughters are also extremely rich. Respondent No.1 looks down upon the petitioner and her husband as they do not have high income and are not upto her standard. After the death of father in law respondent No.1 wanted to sell the flat to sustain her luxurious lifestyle to which petitioner and her husband did not agree. Because of that respondent No.1 was annoyed for which she on her own moved out of the flat about two years ago but keeping two rooms locked. Petitioner stated that because of his illness her husband used to take heavy dosage of medicines which kept him drowsy for long hours. Respondent No.1 never offered any help to the petitioner in raising her daughter despite her son’sill health. Petitioner has asserted that her husband’s grandfather Anandlal Jasani had nominated twenty percent share of the flat to her husband. She had strongly denied execution of any will by her father in law in favour of respondent No.1 Asserting that as the daughter in law she has all the right to live with dignity in her shared household petitioner has denied meting out any ill treatment to respondent No.1 not to speak of torture etc. She also stated that her family i.e. she her husband and daughter have no other residence and that the flat is their only shelter Tribunal by order dated 15.12.2020 allowed the complaint of respondent No.1 and ordered petitioner and her husband to vacate and to hand over possession of the said flat to respondent No.1 within 60 days from the date of receipt of the said order failing which it was stated that they would be evicted from the flat by use of force. Tribunal however clarified that the said order was limited for the purpose of allowing respondent No.1 to take possession of the flat and to stay peacefully and happily therein the said order should not be construed as allowing respondent No.1 to sell or transfer the same 10. Aggrieved present writ petition has been filed seeking the reliefs as indicated above This Court by order dated 15.04.2021 passed an interim order to the effect that no coercive steps should be taken against the petitioner pursuant to the order dated 15.12.2020 Learned counsel for the petitioner has referred to section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 briefly “the 2007 Act” hereinafter) and submits that under the said provision Tribunal can only award maintenance to a senior citizen including a parent. To support his above contention he has referred to section 9 of the 2007 Act which deals with order for maintenance as well as definition of the word “maintenance” as provided in section 2(b Without ordering for payment of maintenance Tribunal could not have ordered petitioner and her husband to vacate the flat. Section 4 does not contemplate passing of order for eviction of son and daughter in law 12.1. His second submission is that the impugned order is a non speaking order. Tribunal had recorded the rival contentions and thereafter culled out certain observations based on the rival contentions However without any proper deliberation abrupt order for vacation eviction was passed by the Tribunal 12.2. Learned counsel for the petitioner submits that the flat in question is an ancestral property to which both husband of the petitioner and respondent No.1 have right and entitlement. Therefore Tribunal could not have ordered summary eviction of the son and the daughter in lawfrom the ancestral property 12.3. Another submission of learned counsel for the petitioner is that she had specifically contended before the Tribunal that the flat in question is her “shared household” within the meaning of section 2(s of the Protection of Women from Domestic Violence Act 2005 briefly “the 2005 Act” hereinafter). This aspect was not considered by the Tribunal. 12.4. He therefore submits that the impugned order dated 15.12.2020 is wholly untenable in law as well as on facts and is as such liable to be set aside and quashed Per contra learned counsel for respondent No.1 submits that respondent No.1 is a senior citizen and a parent. She is not only unable to maintain herself but is also subjected to intimidation and harassment at the hands of petitioner and her husband. Petitioner had directly interfered with her catering business rendering her unable to maintain herself. He submits that from a reading of the 2007 Act as a whole it is quite clear that the Tribunal constituted thereunder has the jurisdiction to pass an order of vacation of premises by the children or relative in this case son and daughter in law though curiously son has not assailed the impugned order of the Tribunal. He has placed reliance on a single bench decision of this court in Dattatraya Shivaji Mane Vs Lilabai Shivaji Mane Writ Petition No.10611 of 2018 decided on 26.06.2018 in support of his contention that Tribunal is empowered to pass an order of eviction under the provisions of the 2007 Act In his reply submissions learned counsel for the petitioner submits that the dispute in this case is between daughter in law and mother in law. While the mother in law seeks eviction of the daughter in law from the flat on the strength of the 2007 Act the daughter in law seeks to enforce her right to reside in the shared household on the strength of the 2005 Act. Provisions of both the acts are required to be reconciled and read harmoniously. In this connection he has placed reliance on a recent decision of the Supreme court in Smt. S. Vanitha Vs Deputy Commissioner Bangalore Urban District Civil Appeal No.3822 of 2020 decided on 15.12.2020 since reported in AIR 2021 SC 177 Submissions made by learned counsel for the parties have received the due consideration of the court 16. At the outset we may advert to the impugned order dated 15.12.2020. In the said order Tribunal has summed up the grievance of respondent No.1in the following manner: 1. Respondent No.1 is a senior citizen staying in the flat since last 45 years 2. Respondent No.1 is the mother in law of the petitioner and is now a widow supporting her mother of Prashant Niranjan Jasani 3. Both respondent i.e. son and wife scared and tortured respondent No.1. Both compelled her to leave the flat whereafter she had to reside with her daughters 4. Petitioner and her husband are residing in the flat 5. Husband of respondent No.1 expired on 11.04.2016 and she 6. After the death of her husband respondent No.1 has been subjected to more ill treatment by her son and daughter in 7. Respondent No.1 is taking assistance of helpers to meet her day to day expenses. Son and daughter in law are not 8. Husband of respondent No.1 had executed will of his property in favour of respondent No.1. The said will was subsequently probated according to which ownership rights of the flat were recorded in the name of respondent No.1 Register of the concerned society also discloses respondent No.1 as the owner of the flat 9. Son of respondent No.1 is an alcoholic. He keeps arguing with her and often insults her. Both son and daughter in law have threatened respondent No.1 that unless she pays Rs.5 crores to them they would keep torturing her and would also lodge a complaint before the police. They also interfere in her work making it difficult for her to carry on her business from the flat 10. However respondent No.1 has admitted that her son and daughter in law got married on 16.11.2007 whereafter they started residing in the flat. They have a minor daughter by the name of Samaira 11. Because of ill treatment meted out to respondent No.1 by her son and daughter in law she is suffering from several ailments like high blood pressure and diabetes. She now depends upon her three daughters namely Amruta Bhargav Rishita Gupta and Shalini Choksi 16.1. On the other hand Tribunal has summed up the objection of the petitioner and her husband in the following manner: 1. Respondent No.1 does not like her daughter in law petitioner) and this is reflected in her attitude towards the petitioner and her husband Since marriage petitioner has been residing in the said flat as her matrimonial home where her minor daughter is also staying. All of them are leading a peaceful life 3. Respondent No.1 has big expectations. Her daughters are rich so also her friends. She therefore would like to live as a rich person. Petitioner’s husband is not rich. Therefore respondent No.1 does not treat him at par with her daughters and rich friends 4. Respondent No.1 carries on catering business from home through which she earns about Rs.10 000.00 to 15 000.00 per month. After the death of petitioner’s father in law respondent No.1 has been planning to sell the office and the flat. However she has not extended any help to her son i.e. husband of the petitioner 5. Respondent No.1 wants that petitioner and her husband should give her permission to sell the flat. However the flat was in the name of husband’s grandfather. Some shares were given to petitioner’s husband by grandfather Petitioner has denied about execution of any will by husband of respondent No.1 7. The flat is registered jointly in the names of respondent No.1 and husband of the petitioner though respondent No.1 keeps on pressurizing the housing society to register the said flat only in her name Petitioner contended that she has a right to live in the flat Grandfather had granted twenty percent share in the flat to the husband of the petitioner 9. Respondent No.1 stays with her daughters because they are 10. Petitioner has denied the allegation that she and her husband ill treated respondent No.1 and had expelled respondent No.1 from her flat 16.2. On the basis of the rival contentions Tribunal culled out the following distinguishing features: Respondent No.1 is a senior citizen and petitioner is the daughter in law of respondent No.1 Respondent No.1 has four legal heirs i.e. Mr. Prashant Jasani Mrs. Amruta Bhargav Mrs. Rishita Gupta and Mrs. Shalini Choksi and she is a widow Husband of respondent No.1 had expired on 11.04.2016 According to respondent No.1 there is frequent quarrel between her and her daughter in law i.e. petitioner which causes mental trauma to her. Therefore she goes away to stay with her daughters Documents on record reveal that the flat is in the name of Mrs. Anjana Niranjan Jasaniand her son Mr. Prashant Niranjan Jasani. From nomination form No.14 it transpires that Mr. Niranjan Anandlal Jasani had sixty percent share Mrs. Anjana Niranjan Jasani has twenty percent share and Mr. Prashant Niranjan Jasani has twenty percent share in the flat 16.3. After culling out the distinguishing features of the lis Tribunal recorded its findings in the following manner: Petitioner and her husband should improve their behaviour They should not quarrel with respondent No.1 or do such acts which may upset her Respondent No.1 a senior citizen has the right to live a peaceful life in her own flat but she is upset because petitioner and her husband quarrel with her Petitioner and her husband are highly educated and young people. Hence they should make their own arrangement for livelihood and stay. They already have one office shop on rent from which they earn rental income of Rs.35 000.00 per month. They also earn Rs.30 000.00 per month from investments. Therefore petitioner and her husband have reasonable income Respondent No.1 expressed her desire to sell the flat and to distribute the sale proceeds amongst the petitioner and her husband as per their shares to which they have raised 16.4. Interestingly Tribunal has held that the flat is an ancestral property and that both respondent No.1 and the petitioner along with her husband have joint rights. In so far sale of the flat is concerned it is beyond the jurisdiction of the Tribunal 16.5. Tribunal has opined that as per sections 4(2) and 4(3) of the 2007 Act it is the obligation of the children or the relatives as the case may be to maintain a senior citizen to the extent of the needs of such senior 16.6. On the basis of such findings and relying upon sections 4 5 9 13 and 23 of the 2007 Act Tribunal ordered petitioner and her husband to vacate the flat and to handover possession thereof to respondent No.1 within 60 days to enable respondent No.1 to lead a normal and peaceful life. Tribunal has further ordered that if the petitioner and her husband fail to vacate the flat within 60 days they would be evicted therefrom by using force. It has however been clarified that the impugned order is limited for the purpose of allowing respondent No.1 to take possession of the flat and to reside therein peacefully and happily. The impugned order is not for the purpose of sale or transfer of the flat for which parties may approach the competent authority for decision 17. Having noticed and examined the various facets of the impugned order dated 15.12.2020 it would be apposite to deal with the relevant provisions of the 2007 Act 17.1. The statement of objects and reasons for enactment of the 2007 Act is as under: Traditional norms and values of the Indian society laid stress on providing care for the elderly. However due to withering of the joint family system a large number of elderly are not being looked after by their family. Consequently many older persons particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure 1973 the procedure is both time consuming as well as expensive. Hence there is a need to have simple inexpensive and speedy provisions to claim maintenance for parents The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up oldage homes for providing maintenance to the indigent older persons The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property The Bill therefore proposes to provide for: appropriate mechanism to be set up to provide need based maintenance to the parents and senior citizens providing better medical facilities to senior for institutionalisation of a suitable mechanism for protection of life and property of older persons setting up of oldage homes in every The Bill seeks to achieve the above objectives.” 17.2 Preamble to the 2007 Act indicates that it is an act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the constitution and for matters connected therewith or incidental thereto 17.3. Before adverting to the definitions as provided in section 2 we may note that as per section 3 provisions of the 2007 Act has overriding effect. It says that provisions of the 2007 Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the 2007 Act or in any instrument having effect by virtue of any enactment other than the 2007 Act. 17.4. Section 5 deals with application for maintenance. As per sub sectionan application for maintenance may be made by a senior citizen or by a parent as the case may be or if he is incapable by any other person or organization authorized by him or the Tribunal may take cognizance suo moto. As per sub sectionon receipt of an application for maintenance under sub sectionthe Tribunal after giving notice to the children or to the relative and after giving the parties an opportunity of being heard hold an inquiry for determining the amount of maintenance. Under sub sectionTribunal may order payment of interim maintenance during pendency of the proceeding. Sub sectionprovides that failure to pay maintenance as ordered by the Tribunal may lead to issuance of warrant and 17.5. Maintenance of parents and senior citizens is provided in section 4. As per sub sectiona senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him shall be entitled to make an application under section 5 in case of parent or grand parent against one or more of his children not being a minor and in case of a childless senior citizen against such of his relative referred to in section 2(g). Sub sectionsof section 4 mandates that it is the obligation of the children or relative as the case may be to maintain a senior citizen or parent to the extent that the senior citizen or parent may lead a normal life 17.6. Reverting to the definitions in section 2 we find that “maintenance” has been defined in section 2(b) to include provision for food clothing residence and medical attendance and treatment. Section 2(f) defines “property” to mean property of any kind whether movable or immovable ancestral or self acquired tangible or intangible and includes rights or interest in such property. “Relative” has been defined in section 2(g) to mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Under sub sectionof section 2 “senior citizen” has been defined to mean any person being a citizen of India who has attained the age of 60 years or above. 17.7. Tribunal is constituted under section 7 of the 2007 Act whereas jurisdiction and procedure are dealt with in section 6. Section 8 clarifies that summary procedure will be followed in case of inquiry. However the Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing attendance of witnesses etc. Tribunal shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure 17.8. Section 9 deals with order for maintenance. As per sub sectionthe maximum maintenance allowance which may be ordered by the Tribunal shall be such as may be prescribed by the State Government which shall however not exceed ten thousand rupees per month 17.9. Section 15 deals with constitution of Appellate Tribunal. Sub sectionsays that State Government may by notification in the official gazette constitute one Appellate Tribunal for each district to hear appeal against the order of the Tribunal. Section 16 provides for filing of appeals As per section 23 transfer of property to be void in certain circumstances. Sub sectionsays that where any senior citizen who after commencement of the 2007 Act has transferred by way of gift or otherwise his property subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal Sub sectiondeals with a scenario where any senior citizen has a right to receive maintenance out of an estate and when such estate or part thereof is transferred the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous but not against the transferee for consideration and without notice of right In so far the present case is concerned petitioner has contended that the flat in question is a shared household and that she has a right to reside in the shared household. “Shared household” as defined in section 2(s) of the 2005 Act means the following : “(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right title or interest in the Relying on a recent judgment of the Supreme Court in Satish Chandra Ahuja Vs. Sneha Ahuja Civil Appeal No.3483 of 2020 decided on October 15 2020 since reported in 1 SCC 414 Supreme Court in the case of Smt. S. Vanitha has held that definition of shared household in section 2(s) of the 2005 Act is an exhaustive one. Thereafter the definition of the expression “shared household” has been analyzed by the Supreme Court in the following “19. The definition of ‘shared household’ in Section 2(s of the PWDV Act 2005 is exhaustive. This has also recently been held to be so by a judgment of a three judge bench of this Court delivered by Justice Ashok Bhushan in Satish Chandra Ahuja vs Sneha Ahujaof the PWDV Act of 2005 is in two parts: in the means part of the definition the expression ‘shared household’ means i) A household where the person aggrieved lives in a domestic relationship either singly or along with the respondent or ii) At any stage has lived in a domestic relationship either singly or along with the respondent This is followed by an inclusive element so as to cover such a household whether owned or tenanted either jointly by the aggrieved person and the respondent orincludes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest or equity andincludes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right title or interest in the shared household. In the above definition two expressions namely “aggrieved person” and “respondent” have occurred. From the above definition following is clear: i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly the shared household may either be owned or tenanted by the respondent singly or jointly.” 19.1. Supreme Court has further observed that after noticing the ambit of the definition of ‘shared household’ and the object and purpose of the 2005 Act Justice Ashok Bhushan in Satish Chandra Ahuja read with Sections 17 and 19 of Act 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.” 19.2. Supreme Court noted that the expression “respondent” has been defined in section 2of the 2005 Act in the following terms “(q) "respondent" means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:” 19.3. Noticing the above definition and the provisions of section 2(s) Supreme Court in Satish Chandra Ahujaheld “64...The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household 84...The definition of shared household given in Section 2(s cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.” 19.4. Thereafter Supreme Court in Smt. S. Vanitha of the 2005 Act on the one hand and parents and senior citizens under the 2007 Act on the other hand are both vulnerable members of the society their rights would have to be harmonized having regard to the intent of the 2005 Act and the 2007 Act. It was held as under : “22. This Court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry with all powers of the Civil Courts under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007. However the over riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3 cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is also in the nature of a special legislation that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations it would be appropriate for a Tribunal under the Senior Citizens Act 2007 to grant such remedies of maintenance as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes such as the PWDV Act 2005 Section 26 of the PWDV Act empowers certain reliefs including relief for a residence order to be obtained from any civil court in any legal proceedings. Therefore in the event that a composite dispute is alleged such as in the present case where the suit premises are a site of contestation between two groups protected by the law it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs after noticing the competing claims of the parties claiming under the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the Senior Citizens Act 2007 cannot be deployed to over ride and nullify other protections in law particularly that of a woman’s right to a ‘shared household’ under Section 17 of the PWDV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007 she shall duty bound to inform the Magistrate under the PWDV Act 2005 as per Sub sectionof Section 26 of the PWDV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005 of ensuring speedy relief to its protected groups who are both vulnerable members of the society is effectively realized. Rights in law can translate to rights in life only if there is an equitable ease in obtaining 19.6. Following the above Supreme Court in Smt. S. Vanitha it is true that a single bench of this Court has taken the view that Tribunal was fully justified in passing an order of eviction against the petitioner and his other family members by rejecting the submission of the petitioner that an order of eviction cannot be passed by the Tribunal under section 4 of the 2007 Act read with other provisions of the said 2007 Act. While arriving at such a conclusion learned Single Judge relied upon the decisions of the Delhi High Court in Sunny Paul Vs. State delivered on 15.03.2017 in Writ PetitionNo.104615 and again in the case of Nasir Vs State 2015DRJ 259 20.1. Petitioner in Dattatrey Shivaji Mane was the son of respondent No.1 mother. The tenement in question belonged to respondent No.1 exclusively. In paragraph 13 of the said judgment there is a clear finding of fact by learned Single Judge that respondent No.1 has exclusive rights in the tenement which was allowed to be occupied by the petitioner and his family members by respondent No.1. In fact in paragraph 14 it is clarified that petitioner could not point out any legal right to occupy the tenement owned by respondent No.1. The only submission made was that since petitioner was maintaining respondent No.1 for last several years no order of eviction should be passed by the Tribunal against the petitioner. On the other hand it was found that respondent No.1 had produced sufficient material showing that she was harassed by the petitioner and his family members for the last several years. Petitioner also did not dispute that complaints were filed by respondent No.1 alleging harassment by the petitioner. Proceeding on the basis that petitioner could not show any right of any nature whatsoever in the tenement of respondent No.1 under any provisions of law learned Single Judge held that it is exclusively for respondent No.1 as a senior citizen to decide whether she wants to permit the petitioner and his family members to stay with her or not. Since she had decided not to allow the petitioner and his family members to stay with her in the house owned by her therefore learned Single Judge held that Tribunal was fully justified in passing an order of eviction not only against the petitioner but also against his other family members Reverting back to the facts of the present case we find that Tribunal had arrived at the finding that the flat in question is an ancestral property with both husband of petitioner and respondent No.1 having joint rights over the same. From the documents on record Tribunal came to the conclusion that the flat was in the name of respondent No.1 and husband of the petitioner deceased husband of respondent No.1 had sixty percent share whereas respondent No.1 and husband of the petitioner have twenty percent share each in the flat 22. Question for consideration is whether the Tribunal under the 2007 Act can order eviction of a person from a tenement in which he has ownership right to the extent of twenty percent This is in addition to the question which arises as to whether having regard to the mandate of section 4 of the 2007 Act read with other provisions of the said 2007Act Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance Further the question of petitioner’s right to reside in her shared household under the 2005 Act may also require consideration by the Tribunal 23. At this stage we may mention that in Smt. S. Vanitha Supreme Court has taken the view that the Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent. Eviction in other words would be an incident of the enforcement of the right to maintenance and protection. However this remedy can be granted only after adverting to the competing claims in Though learned Single Judge in Dattatrey Shivaji Maneof section 5 of the 2007 Act the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance. Though the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent No.1 or it is an ancestral property where petitioner has also a right to ownership and or residence through her husband. Tribunal is also required to deal with the contention of the petitioner that the flat in question is her shared household wherefrom she cannot be evicted. As the Supreme Court has pointed out in Smt. S. Vanithaboth parents senior citizens and the daughter in law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted. It is in the backdrop of the above that the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding 27. Accordingly and for the reasons set out above we set aside and quash the order dated 15.12.2020 passed by the Tribunal and remand the matter back to the Tribunal for a fresh decision in accordance with law after hearing the parties and having regard to the discussions made above. Let such decision on remand be taken within a period of two months from the date of receipt of a copy of this judgment 28. Writ petition is accordingly allowed to the above extent. No costs MADHAV J. JAMDAR J (UJJAL BHUYAN J Priya Minal |
Writ Petition not maintainable in High Court when alternative remedies exist : Himachal Pradesh High Court | High Courts cannot entertain a writ petition wherein alternative remedies are available which have not been availed by the aggrieved. The High Court bench consisting of J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua, decided upon the matter of M/s Radha Krishan Industries v. State of H.P. and Ors. [CWP No. 568 of 2020], wherein the petition was filed under Article 226. By way of search and seizure as provided under the Himachal Pradesh Goods and Services Tax Act, 2017 and the Integrated Central Goods and Services Tax Act, 2017 against the suppliers of the present petitioners, a detection was made, post which a show cause notice was issued to them. The petitioner, in response to this filed representation after which the respondent withdrew the aforementioned notice. However, after the initial inquiry, evidences of tax evasion were detected and it was found that input tax credit was claimed and utilized on account of invoices which were issued by fake/fictious firms without any actual movement of goods from them. Consequently the payments were issued by the respondent to the petitioners which led rise to the present appeal. The learned Sr. Addl. Advocate general questioned the very maintainability of the petition on the grounds that alternative remedies were available. The counsel for the petitioner however, argued that though they did not dispute that alternative remedy was available, however, the rule of exclusion of jurisdiction due to availability of such a remedy was a rule of discretion and not a compulsion. The HC relied on the matter of Micromax Informatics Ltd. v. State of H.P. and Ors. [2015 (3) SLC 1293], wherein it was held that “High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation”. Further the HC relied on another latest SC judgement in the case of Assistant Commissioner (CT) LTU, Kakinada and Ors. v. Glaxo Smit Kline Consumer Health Care Limited [AIR 2020 SC 2819], wherein it was held that “though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law”. | Hig h C o urt of H.P on 03 01 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 56420 Reserved on : 29.12.2020 Decided on : 1 .1.2021 __________________________________________________________________ M s Radha Krishan Industries ....Petitioner. Versus State of H.P. and others …Respondents. __________________________________________________________________ Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge. The Hon ble Ms Justice Jyotsna Rewal Dua Judge. 1 Whether approved for reporting . yes ______________________________________________________ For the petitioner: Mr. Puneet Bali Sr. Advocate with Mr. Jyotirmay Bhatt Advocate. For the respondents: Mr. Ajay Vaidya Sr. Addl. A.G. Tarlok Singh Chauhan Judge The instant petition has been filed for the grant of following substantive reliefs: a) Issue a writ petition under Article 226 of the Constitution of India in the nature of Certiorari quashing impugned order dated 21.10.2020passed by the Commissioner respondent No.2 delegating his powers absolutely being inter alia illegal arbitrary misconceived erroneous and even violative of principles of natural justice equity and fair play. b) Issue a civil writ petition under Article 226 of the Constitution of India in the nature of certiorari quashing the proceedings initiated by the respondent No.3 under section 83 by provisionally attaching the amount receivable by the petitioner 1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 03 01 HCHP 2 from its customer while issuing Form DRC 22 to M s Deepak International Limited vide Memo No. EXN JCSTE SEZ Parwanoo 2020 21 1171 dated 28.10.2020and to M s Fujikawa Power vide Memo No. EXN JCSTE SEZ Parwanoo 20209 21 1167 dated 28.10.2020being inter alia illegal arbitrary misconceived erroneous and even violative of principles of natural justice equity and fair play. c) Issue a writ in the nature of mandamus directing the respondent No.3 to revoke the provisional attachment and not to resort to further coercive measures against the petitioner. 2. A detection case under section 74 of the Himachal Pradesh Goods and Services Tax Act 2017and the Central Goods and Services Tax Act 2017 read with section 20 of the Integrated Goods and Services Tax Act 2017 was conducted against one of the suppliers of M s Radha Krishan Industries Kala Amb i.e. M s GM Powertech Kala Amb on 10.10.2018 by way of search and seizure as provided under section 67 of the HPGST CGST Acts. A show cause notice dated 9.1.2019was issued to M s Fujikawa Power Bagbania BBN Baddi regarding provisional attachment of payment of the petitioner under section 83 of the Act. In response to the show cause notice the petitioner filed representation dated 29.1.2019and respondent Hig h C o urt of H.P on 03 01 HCHP 3 No.3 vide letter dated 30.1.2019withdrew the aforesaid notice. However after initial inquiry into the matter evidences of tax evasion were detected and M s GM Powertech Kala Amb claimed and utilized input tax credit on account of the invoices issued by the fake fictitious firms without actual movement of goods from the fake firms. Similarly M s GM Powertech also issued invoices on the same analogy to various recipients situated in the state of Himachal Pradesh including the petitioner. Consequently respondents issued provisional attachment of the payment receivable by the petitioner vide Annexures P 2 and P 3. 3. Mr. Ajay Vaidya learned Sr. Addl. Advocate General has questioned the very maintainability of this petition on the ground of availability of alternative remedy. 4. Learned counsel for the petitioner does not dispute that there is alternative remedy available by way of appeal under section 107 of the GST Act with respect to the Annexures P 2 and P 3 issued by respondent No.3. However he would contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions. He would further contend that inspite of alternative remedy the writ court may in an Hig h C o urt of H.P on 03 01 HCHP 4 appropriate case exercise its discretionary jurisdiction of judicial review especially in the following cases: i) Where the writ petition is filed for the enforcement of any of the fundamental rights or ii) where there is a violation of the principles of natural justice or iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged or iv) where the statutory authority has not acted in accordance with the provisions of the enactment in question or v) in defiance of the fundamental principles of judicial procedure or vi) has resorted to invoke the provisions which are repealed or vii) when an order has been passed in total violation of the principles of natural justice 5. It is not in dispute that respondent No.3 and the Divisional Commissioner who has been appointed as Commissionerunder the GST Act are constituted under the Act and therefore it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority which is competent to pass the Hig h C o urt of H.P on 03 01 HCHP 5 order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non compliance of procedure the same cannot be a ground for granting one of the writs prayed for. The defect if any can according to the procedure established by law be corrected only by a court of appeal or revision. 6. In drawing this conclusion we are fortified by the following judgments of this Court : Indian Technomac Company Ltd. vs State of H.P. and others CWP No. 47714 and analogous matters decided on 4.8.2014 which in turn has been followed in M s Samsung India Electronics Pvt Ltd. vs State of H.P. and others ILR 2015HP 226 and both these judgments in turn have been followed in Micromax Informatics Ltd. vs State of H.P. and others 2015SLC 1293. 7. At this stage we only need to refer to the later judgment in Micromax’s casethe relevant portion reads thus: “[10] Thus the petitioners have efficacious remedy available as per the mandate of Section 48 of the Act.It is beaten law of the land that when the efficacious remedy is available the writ petition is not maintainable.This Court in batch of writ petitions the lead case of Hig h C o urt of H.P on 03 01 HCHP 6 which is CWP No. 47714 titled M s Indian Technomac Company Ltd. versus State of H.P. & others decided on 4.8.2014 held that the petitions are not maintainable. It is apt to reproduce paras 11 to 14 16 and 18 of the said judgment herein: "11. Now the question which arises for determination is when an Act provides mechanism to have remedy(ies) can a writ lie in the given circumstances The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court without availing the remedy(ies) provided must be deprecated unless express case is made out. 12. The Apex Court in Union of India and another vs. Guwahati Carbon Limited 2012 11 SCC 651 while dealing with the similar question has observed in paragraphs 8 9 10 11 14 and 15 as under: "8. Before we discuss the correctness of the impugned order we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee Chheharta 1979 AIR(SC) 1250 In the said decision this Court was pleased to observe that:"23. . when a revenue statute provides for a person aggrieved by an assessment thereunder a particular remedy to be sought in a particular forum in a particular way it must be sought in that forum and in that manner and all the other forums and modes of seeking remedy are excluded." 9. A Bench of three learned Judges of as Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 held:"11......The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of Hig h C o urt of H.P on 03 01 HCHP 7 assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where right or liability is created by a statute which gives a special remedy for 1 enforcing it the remedy provided by that statute must be availed...." 10. In other words existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdictionof Clauseof Section 17. If Sections 11 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum the State Commission and the National Commission there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. 25. What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of Hig h C o urt of H.P on 03 01 HCHP 9 statutory remedy of appeal to the respondents." 14. The Apex Court in a recent decision in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal 2014 1 SCC 603 has discussed the law on the subject right from the year 1859 till the date of judgment i.e. 8th August 2013. We deem it proper to reproduce paragraphs 12 13 15 16 and 17 hereunder: "12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission 1954 AIR(SC) 207 Sangram Singh vs. Election Tribunal 1955 AIR(SC) 425 Union of India vs. T.R. Varma 1957 AIR(SC) 882 State of U.P. vs. Mohd. Nooh 1958 AIR(SC) 86 and K.S. Venkataraman and Co.Ltd. vs. State of Madras 1966 AIR(SC) 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere it can refuse to exercise its jurisdiction. The Court in extraordinary circumstances may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted.422 Municipal Council Khurai vs. Kamal Kumar 1965 2 SCR 653 Siliguri Municipality vs. Amalendu Das 1984 2 SCC 436 S.T. Muthusami vs. K. Natarajan 1988 1 SCC 572 Rajasthan SRTC vs. Krishna Kant 1995 5 SCC 75 Kerala SEB vs. Kurien E. Kalathil 2000 6 SCC 293 A. Venkatasubbiah Naidu vs. S. Chellappan 2000 7 SCC 695 L.L. Sudhakar Reddy vs. State of A.P. 2001 6 SCC 634 Shri Sant Sadguru Janardan SwamiSahakari Dugdha Utpadak Sanstha vs. State of Maharashtra 2001 8 SCC 509 Pratap Singh vs. State of Haryana 2002 7 SCC 484 and GKN DriveshaftsLtd. vs. ITO 2003 1 SCC 72). 13. In Nivedita Sharma vs. Cellular Operators Assn. of India 2011 14 SCC 337 this Court has held that where hierarchy Hig h C o urt of H.P on 03 01 HCHP 10 of appeals is provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:"12. In Thansingh Nathmal v. Supdt. of Taxes 1964 AIR(SC) 1419 this Court adverted to the rule of self imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:para 7). 7. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 this Court observed:11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford 1859 141 ER 486 in the following passage:" There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by Hig h C o urt of H.P on 03 01 HCHP 11 the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532and Secy. of State v. Mask and Co. 1940 AIR(PC) 105 It has also been held to be equally applicable to enforcement of rights and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India 1997 5 SCC 536 B.P. Jeevan Reddy J.observed:77. So far as the jurisdiction of the High Court under Article 226 or for that matter the jurisdiction of this Court under Article 32 is concerned it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is however equally obvious that while exercising the power under Article 226 Article 32 the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. "192 CCE v. Dunlop India Ltd. 1985 1 SCC 260 Ramendra Kishore Biswas v. State of Tripura 1999 1 SCC 472 Shivgonda Anna Patil v. State of Maharashtra 1999 3 SCC 5 C.A. Abraham v. ITO 1961 2 SCR 765 Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 H.B. Gandhi v. Gopi Nath and Sons 1992 Supp2 SCC 312 Whirlpool Corpn. v. Registrar of Trade Marks 1998 8 SCC 1 Tin Plate Co. of India Ltd. v. State of Bihar 1998 8 SCC 272 Sheela Devi v. Jaspal Singh 1999 1 SCC 209 and Punjab National Bank v. O.C. Krishnan 2001 6 SCC 569) 14. In Union of India vs. Guwahati Carbon Ltd. 2012 11 SCC 651 this Court has reiterated the aforesaid principle and observed:Hig h C o urt of H.P on 03 01 HCHP 12 "8. Before we discuss the correctness of the impugned order we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee Chheharta 1979 3 SCC 83. In the said decision this Court was pleased to observe that:are excluded. " xxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx 15. Thus while it can be said that this Court has recognized some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed or when an order has been passed in total violation of the principles of natural justice the proposition laid down in Thansingh Nathmal v. Supdt. of Taxes 1964 AIR(SC) 1419 Titagarh Paper Mills 1983 SCC(Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case the Act provides complete machinery for the assessment re assessment of tax imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities and the assessee could not be permitted to abandon that machinery and to invoke the Hig h C o urt of H.P on 03 01 HCHP 13 jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Taxbefore approaching the High Court by way of the writ petitions for the redressal of their grievances. The petitioners ought to have exhausted the remedy of appeal before the Deputy Excise and Taxation Commissioner or Additional Excise and Taxation Commissioner or the Excise Commissioner as the case may be and if the petitioners were not successful in those appeal proceedings another remedy available to them was to challenge the said order(s) by the medium of appeal before the Tribunal and again if they were unsuccessful they could have availed the remedy of revision before the High Court in terms of Section 48 of the HP VAT Act 2005. Keeping in view the above discussion read with the fact that the dispute raised in these writ petitions relates Hig h C o urt of H.P on 03 01 HCHP 14 to revenue tax matters it can safely be concluded that the petitioners have sufficient efficacious remedy(ies) available. 17 .. . 18. Having said so we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly the same merit to be dismissed in limine. However it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation."The apex Court in case titled Union of India and others versus Major General Shri Kant Sharma and another 2015 AIR(SCW) 2497) has also held that in the given circumstances the writ petition is not maintainable. It is apt to reproduce paras 34 37 and 38 of the said judgment herein: "34. The aforesaid decisions rendered by this Court can be summarised as follows: The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.of Article 136 of the Constitution of India the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment determination sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clauseof Article 136 this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter the person who thus approached the High Court will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act Hig h C o urt of H.P on 03 01 HCHP 16 against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby there is a chance of anomalous situation. Therefore it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above which is binding on the High Court under Article 141 of the Constitution of India allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Courtwhile entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further the law laid down by this Court as referred to above being binding on the High Court we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India." 8. The Hon’ble Supreme Court has in one of its latest judgments in Assistant CommissionerLTU Kakinada and others vs Glaxo Smit Kline Consumer Health Care Limited AIR 2020 SC 2819 held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India but it has not to do so as a matter of course when aggrieved person Hig h C o urt of H.P on 03 01 HCHP 17 could have availed the effective alternative remedy in the manner prescribed by law. Reference in this regard can be made to the observations as contained in para 11 which read as under:In the backdrop of these facts the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent As regards the power of the High Court to issue directions orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed action taken by the State under Article 226 of the Constitution it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law556 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors. 2011 14 SCC 337 ). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes Dhubri & Ors. 1964 AIR(SC) 1419 the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide the Court must exercise self imposed restraint and not entertain the writ petition if an alternative effective remedy is available to the aggrieved person. In paragraph 7 the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed the appellants moved the High Court challenging the competence of the Provincial Hig h C o urt of H.P on 03 01 HCHP 18 Legislature to extend the concept of sale and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226 where the petitioner has an alternative remedy which without being unduly onerous provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up."We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 1983 2 SCC 433 wherein it is observed that where a right or Hig h C o urt of H.P on 03 01 HCHP 19 liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute must only be availed of. In paragraph 11 the Court observed thus: "11. Under the scheme of the Act there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub sectionof Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal they can prefer a further appeal to the Tribunal under sub sectionof Section 23 of the Act and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford 1859 6 CBNS 336in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. 1935 AC 532 and Secretary of State v. Mask & Co. 1940 Hig h C o urt of H.P on 03 01 HCHP 20 AIR(PC) 105. It has also been held to be equally applicable to enforcement of rights and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. 1997 5 SCC 536 this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court however added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently the fact that the High Court has wide jurisdiction under Article 226 of the Constitution does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.” 9. Thus what can be deduced from the aforesaid exposition of law is that the Hon’ble Supreme Court has recognized some exception to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed or where an order has been passed in total violation of the principle of natural justice but the High Court will not entertain a petition under Article 226 of the Constitution of Hig h C o urt of H.P on 03 01 HCHP 21 India if efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken in mechanism for redressal of grievance still holds the field. Meaning thereby that when a statutory form is created by law for redressal of grievance a writ petition should not be entertained ignoring the statutory dispensation. 10. Having said so we are of the considered view that the writ petitioner has not only efficacious remedy rather alternative remedy under the GST Act and therefore the present petition is not maintainable. 11. Lastly and importantly we find that the writ petition filed by M s GM Powertech the company against whom same and similar allegations as have been levelled against the petitioner herein being CWP No. 54620 has not been entertained and the company has been relegated to avail of the alternative remedy vide judgment dated 7.12.2020. 12. Accordingly the present petition is dismissed. However it is made clear that the observations made herein above shall not cause any prejudice to the petitioner Hig h C o urt of H.P on 03 01 HCHP 22 in case he intends to file an appeal before the prescribed authority and it is further made clear that the period spent in prosecuting this writ petition shall be excluded by the authority while computing the period of the limitation. The parties are left to bear their own costs. Pending application(s) if any also stand disposed of. Judge Judge 1. 1.2021 awasthi |
It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial: The High Court of Delhi | Ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal. When the courts below recorded the concurrent findings of fact, the High Court is not right in interfering with the concurrent findings of fact arrived at by the courts below. The aforesaid has been established by the Apex Court in the case of State v. Manimaran reported as (2019) 13 SCC 670 and this non-interference policy has been extensively adopted by the Delhi High Court in the instant case of Sudhir Gupta v. Manisha Kumari @ Manisha Gupta [ CRL.M.C. 1117/2021 & CRL.M.A. 5684/2021(stay)] which was decided by a single judge bench comprising Justice Subramonium Prasad on 14th June 2021. The facts of the case are as follows. The petitioner and the respondent got married in 2014 and gave birth to a child who later expired. Differences arose between the couple and the left the matrimonial house in 2016. Later, the respondent filed a petition under Section 12 of DV Act praying for direction to the petitioner herein to let the respondent herein reside in the shared household, granting injunction against the family members of the petitioner from repeating any acts of violence mentioned in the complaint and for grant of compensation of Rs.50,000/-. The respondent herein also filed an application under Section 23 of the DV Act for grant of maintenance of Rs.60,000/- per month. The learned Metropolitan Magistrate in 2018 declined to grant interim maintenance to the respondent herein on the ground that the respondent herein was working and that she, being a well-qualified spouse, is not entitled to interim maintenance. Against the order of the learned Metropolitan Magistrate, a Criminal Appeal, was filed by the respondent herein before the learned Additional Session Judge. The order of the learned Metropolitan Magistrate was set aside and the matter was remanded back. After perusing the material on record the learned Metropolitan Magistrate directed the petitioner herein to pay a sum of Rs.16,500/- per month, from the date of the petition till the disposal of the case, to the respondent herein as interim maintenance. This Particular order has been challenged by the petitioner herein. The arguments contended by both the parties have been stated below. The counsel for petitioner threw light on the fact that respondent has been giving contradictory statements to different forums. He contended that the petitioner is merely 12th passed and earns a meagre amount whereas the respondent is post-graduate from IGNOU, has got a Diploma in Apparel Manufacturing Technology from ATDC Gurgaon and she is much more educated and capable of earning substantial amount of money. He contended that the respondent is not working just to harass the petitioner. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th JUNE 2021 CRL.M.C. 1117 2021 & CRL.M.A. 5684 2021(stay) SUDHIR GUPTA ..... Petitioner Through Mr. Gaurav Gupta Advocate MANISHA KUMARI @ MANISHA GUPTA ..... Respondent Through None HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 Cr.P.C is directed against the order dated 28.02.2020 passed by the Additional Sessions Judge 03 West District Tis Hazari Courts Delhi in Criminal Appeal No. 55 2 19 affirming the order dated 31.08.2019 passed by the Metropolitan Magistrate Mahila Court in an application under Section 23 of the Protection of Women from Domestic Violence Act 2005 directing the petitioner herein to pay a sum of Rs.16 500 as interim maintenance to the respondent herein wife. The facts in brief leading to the instant petition are as under: a) The petitioner and the respondent got married on 01.12.2014 according to Hindu rites and ceremonies. A child was born out of the wedlock but unfortunately the child expired. Differences arose between the petitioner and the respondent. It is stated that the CRL.M.C. 1117 2021 respondent herein left the matrimonial home on 22.02.2016. It is stated that the respondent filed a petition under Section 12 of the DV Act praying for direction to the petitioner herein to let the respondent herein reside in the shared household granting injunction against the family members of the petitioner herein including his father mother sisters and their husbands from repeating any acts of violence mentioned in the complaint and for grant of compensation of Rs.50 000 . The respondent herein also filed an application under Section 23 of the DV Act for grant of maintenance of Rs.60 000 per b) Affidavits of income were filed by the petitioner and the respondent. In her affidavit the respondent herein stated that she is a graduate and has done diploma course in fashion designing but after marriage she left her job. She also stated that the petitioner herein is working in a private firm and he is also running business and he is earning Rs.1 00 000 per month. It is also stated that the petitioner herein is having credit cards and also has a car. It was contended by the respondent herein that the petitioner herein has concealed his income. The petitioner herein filed a reply denying all the allegations against him. c) The learned Metropolitan Magistrate vide order dated 16.01.2018 declined to grant interim maintenance to the respondent herein on the ground that the respondent herein was working and that she being a well qualified spouse is not entitled to interim maintenance. d) Against the order of the learned Metropolitan Magistrate an CRL.M.C. 1117 2021 appeal being Criminal Appeal No. 56 2018 was filed by the respondent herein before the learned Additional Session Judge. The learned Additional Session Judge after relying on the judgment of the Supreme Court in Sunita Kachwaha v. Anil Kachwaha 16 SCC 715 held that merely because the wife is qualified and has a potential for earning cannot be a ground to reject her claim of maintenance. The order of the learned Metropolitan Magistrate was set aside and the matter was remanded back. On remand the learned Metropolitan Magistrate analysed the bank statements of the petitioner herein. The learned Metropolitan Magistrate held that the statement of bank account of the petitioner herein shows that various transactions are being made in his account on a regular basis which he has failed to explain satisfactorily. The learned Metropolitan Magistrate also held that the income affidavit of the petitioner herein shows that he earns Rs.7 500 per month however he is living in his own house and having FDRs to the tune of Rs.4 lakhs he owns a motorcycle and a car. The learned Metropolitan Magistrate refused to accept the Income Tax Returns of the petitioner as his true income on the ground that normally businessmen conceal their actual income in order to evade tax. After perusing the material on record the learned Metropolitan Magistrate directed the petitioner herein to pay a sum of Rs.16 500 per month from the date of the petition till the disposal of the case to the respondent herein as interim maintenance. e) The said order was challenged by the petitioner herein by filing an appeal being Criminal Appeal No. 55 2 19 before the Additional Sessions Judge. The learned Additional Sessions Judge vide order CRL.M.C. 1117 2021 dated 28.02.2020 once again after analysing the facts upheld the order dated 31.08.2019 passed by learned Metropolitan Magistrate. It is this order which has been challenged in the instant petition. Heard Mr. Gaurav Gupta learned counsel for the petitioner and perused the material on record. The learned counsel for the petitioner vehemently contends that the respondent has given contradictory statements in various forums and litigations between the same parties. He further states that the petitioner has passed only 12th standard and was earning a meagre amount of Rs.22 500 per month whereas the respondent herein who was pursuing post graduate from IGNOU has got a Diploma in Apparel Manufacturing Technology from ATDC Gurgaon and she is much more educated and capable of earning substantial amount of money. The learned counsel for the petitioner contends that the respondent herein is not working only to harass the petitioner. He contends that the Courts below erred in not going through the Income Tax Returns of the petitioner herein. He states that the observation of the learned Metropolitan Magistrate that the petitioner herein is earning at least Rs.50 000 per month is only on the basis of conjectures and surmises. Having gone through the records of the case the conclusion drawn by the Courts below that the petitioner has not been able to explain the transactions in his bank accounts cannot be found fault with. It has not been denied that the petitioner has got fixed deposit he owns a motorcycle car and has also got credit cards. The fact that the respondent herein is more qualified than the petitioner and the fact that she was working as a CRL.M.C. 1117 2021 Merchandiser with Richa Group and was getting salary is no ground to deny maintenance to her as at present she is not earning any income. The Supreme Court in Manish Jain v. Akanksha Jain 15 SCC 801 has observed as under: the proceedings is conditional on 16. An order for maintenance pendente lite or for costs of circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise the financial position of the wife s parents is also immaterial....." The reasoning of the learned Metropolitan Magistrate as affirmed by the learned Additional Session Judge does not call for any interference. The reliance placed by the petitioner on the deposition of the respondent herein in proceedings initiated by her under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights vide HMA No. 1459 2018 does not help the petitioner in rejecting the claim of the respondent herein for maintenance. It cannot be said that the findings of the Courts below are so perverse that it requires any interference by the High Court under Section 482 Cr.P.C. The scope of revision under Section 397 401 Cr.P.C read with Section 482 Cr.P.C is narrow. Courts do not go into excruciating details on facts and unless the judgments of the courts below are so perverse High Court does not interfere with concurrent findings. The Supreme Court in State of Kerala v. Puttumana Illath Jathavedan Namboodiri reported as2 SCC 452 has observed as under: CRL.M.C. 1117 2021 5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties we have no hesitation to come to the conclusion that in the case in hand the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order. In other words the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily therefore it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would to gross miscarriage of Namboodiri2 SCC 452 : 1999 SCC275] ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal. When the courts below recorded the concurrent findings of fact in our view the High Court was not right in interfering with In State v. Manimaran reported as 13 SCC 670 the Supreme Court has observed as under: CRL.M.C. 1117 2021 the concurrent findings of fact arrived at by the courts below and the impugned order cannot be 11. The learned Metropolitan Magistrate and the learned Additional Sessions Judge have analysed the facts and the law in the correct perspective. The judgements are well reasoned. It cannot be said that the conclusions drawn by the Courts below are perverse or are based on nil evidence. The judgments of the Courts below do not warrant any 12. Needless to state that the learned Metropolitan Magistrate has granted only interim maintenance to the respondent herein and the final maintenance is subject to the outcome of the proceedings. 13. Accordingly the petition is dismissed along with the pending SUBRAMONIUM PRASAD J application. JUNE 14 2021 CRL.M.C. 1117 2021 |
The right to participate in an election is an elementary right available to the members of an organisation: Karnataka High Court | No harm or prejudice would be caused to the appellants if the plaintiff was permitted to participate in the electoral process. Such an opinion was held by The Hon’ble High Court of Karnataka before The Hon’ble Mr. Justice N.S. Sanjay Gowda in the matter of Rt. Rev Prasanna Kumar Samuel and ors Vs. Mr. Franklin James [M.F.A. No. 5148/2021(CPC)]. The facts of the case were associated with a Synod-Matter Enquiry report pending disposal of the suit dated 19.07.2021 wherein the Trial Court had restrained the defendants/appellants from giving effect to the resolution. Furthermore, the appellants were restrained by the Trial Court from preventing the plaintiff to exercise votes in any of the elections conducted by the 4th and 5th defendants other than the elections that prohibit to contest under Chapter VII Rule 12(E) of the Constitution. Thereby, the Trial Court in the interim order permitted the plaintiff to cast vote and contest in elections. The counsel, Sri B.M Arun argued that it was not made clear by the Trial Court if the Returning Officer could reject the application if the plaintiff was ineligible. While, the counsel, Miss Sanjana Rao representing the respondents contended that Returning Officer was always open to reject the nomination paper. Moreover, it was also submitted that the plaintiff was entitled to participate in the election as they didn’t suffer any disqualification. The Hon’ble High Court of Karnataka considering all the submissions ruled out that “ In view of the fact that both the parties are in agreement that the nomination paper of the plaintiff can be considered in accordance with the Constitution of the Church of South India, 2016 and in accordance with the law, the interim order granted by the Trial Court does not, in any way, prejudices either of them. I, therefore, find no reason to entertain this appeal and the appeal is rejected subject, however, to the observation made above.” | IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER 2021 THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA RT. REV PRASANNA KUMAR SAMUEL SON OF LATE R.K.SAMUEL AGED 65 YEARS BISHOP KARNATAKA CENTRAL DIOCESE No.20 3RD CROSS CSI COMPOUND BANGALORE 560 027. REV J PAUL DHANASEGARAN SECRETARY KARNATAKA CENTRAL DIOCESAN COUNCIL No.20 3RD CROSS CSI COMPOUND BANGALORE 560 027. THE EXECUTIVE COMMITTEE KARNATAKA CENTRAL DIOCESE No.20 3RD CROSS CSI COMPOUND BANGALORE 560 027. THE KARNATAKA CENTRAL DIOCESE No.20 3RD CROSS CSI COMPOUND BANGALORE 560 027. REP. BY REV J PAUL DHANASEGARAN. BY SRI. B.M.ARUN ADV.) 1. MR. FRANKLYN JAMES … APPELLANTS 2 SON OF D.JAMES ABRAHAM AGED 68 YEARS No.215 BDS GARDEN GEDDALAHALLI KOTHANUR P.O. BANGALORE 560 077. CHURCH OF SOUTH INDIA No.5 WHITES ROAD ROYAPETTAH CHENNAI 600 014 REPRESENTED BY ITS GENERAL SECRETARY. … RESPONDENTS BY MISS SANJANA RAO ADV.) THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 OF THE CODE OF CIVIL PROCEDURE 1908 PRAYING TO SET ASIDE THE COMMON ORDER DATED 08.10.2021 O.S.No.26083 2021 PASSED BY THE IV ADDITIONAL CITY CIVIL JUDGE BANGALORE MAYOHALL THERE ALLOWING I.A.Nos.1 & 2 READ WITH SECTION 151 OF THE THIS APPEAL COMING ON FOR ORDERS THIS DAY THE COURT DELIVERED THE FOLLOWING By the impugned order the Trial Court has restrained the defendants appellants herein from giving effect to the resolution ‘CX.383 2018 21: Synod Matter Enquiry report’ dated 19.07.2021 pending disposal of the suit. Trial Court has defendants appellants from preventing the plaintiff from 3 exercising his vote or from contesting any of the Elections of the area councils elections at the Triennial councils and or any other elections conducted by or with respect to the 4th and 5th defendants except in respect of the election which prohibits him from contesting in the election under Chapter VII Rule 12(E) of the Constitution of 5th defendant pending disposal of the suit. Thus by the interim order all that has been done by the Trial Court is to permit the plaintiff to exercise his vote and from contesting the elections. This interim order in my view does not prejudice the appellants in any manner. If the plaintiff is permitted to participate in the electoral process no harm or prejudice would be caused to the appellants since the right to participate in an election is an elementary right available to a member of an organization governed by its rules. Sri B.M.Arun learned counsel appearing for the appellants vehemently contended that the Trial Court has not made it clear as to whether the Returning Officer could reject the application if the plaintiff was otherwise ineligible. 4 Miss Sanjana Rao learned counsel appearing for the respondent plaintiff submits that it is always open for the Returning Officer to reject the nomination paper if as a matter of fact there is any ineligibility surrounding the candidature of the plaintiff. She also submits that the plaintiff does not suffer from any disqualification and is entitled to contest the election. In view of the fact that both the parties are in agreement that the nomination paper of the plaintiff can be considered in accordance with the Constitution of the Church of South India 2016 and in accordance with law the interim order granted by the Trial Court does not in any way prejudices either of them. I therefore find no reason to entertain this appeal and the appeal is rejected subject however to the observation made above. Sd JUDGE |
Educationists play a significant role in the cases of education than the courts- SC | In the case of Anand Yadav & Ors. V. State of Uttar Pradesh & Ors. (CIVIL APPEAL NO. 2850 OF 2020), the Supreme court held that the matters of education must be left to educationists, of course, subject to being governed by the relevant statutes and regulations. The judgment was given by Justice Sanjay Kishan Kaul, Aniruddha Bose, and Krishna Murari. The facts of the case initiated with a dispute in Advertisement No. 46, which was issued by respondent No. 2, the Uttar Pradesh Higher Education Service Selection Commission (for short ‘UPHESSC’) in March 2014. The advertisement was an invitation applications for the post of Assistant Professors in various subjects, including ‘Education’. The candidature of appellant No. 2 was rejected on the ground that he was unable to fulfill the minimum criteria which were set out by the University Grants Commission (for short ‘UGC’), respondent No. 4, although he was an M.Ed. Degree holder. This caused the said appellant to approach the High Court by filing Writ-A No. 61 of 2015. However, the process in pursuance of the aforesaid advertisement was nearly completed while the writ petition was still pending, and in the meantime a subsequent advertisement, i.e., Advertisement No. 47 of 2016 was issued. This was once again for the post of Assistant Professor in various subjects, including hundred posts in ‘Education’ in Government aided non-Government universities. The twin criteria specified as the eligibility, was again the same : “(a) the requirement of a 55 per cent score in a relevant subject at the Post Graduate Level or with a similar scoring in relation to grades wherever there is a grading system; and (b) passing marks in the National Eligibility Test (for short ‘NET’), or U.P. State Level Eligibility Test (for short ‘SET’), or State Level Eligibility Test (for short ‘SLET’) as conducted by UGC.” Thus the question of dispute was: (a) “would an M.Ed. Degree be treated as an equivalent degree to M.A. (Education) for the purposes of appointment to the post of Assistant Professor?” (b) “even if it was treated as an equivalent, could it be said that an M.Ed. is a post-graduation in the relevant subject?” The court in this case had held “We must, at the inception, express our reservation about the manner in which the writ petition was filed and a decision was taken in the impugned order of the High Court without even calling upon the relevant authorities, i.e., the UGC and the NCTE to put forth their stand. The first authority is undisputedly the one to determine and specify the nomenclature of degrees, while the second is the authority of teacher education. Whatever has been the earlier position, as is sought to be relied upon, of the Gujarat High Court, the same is no more in doubt. A decision based in the absence of concerned authorities is likely to and has caused confusion. We are also of the view that affected candidates, or at least some of them in a representative capacity, were bound to be heard and no decision could have been taken behind the back of these candidates. “The stand put forth before us by the UGC/respondent No. 4 is unequivocal in its terms that M.Ed. degree is indeed a master’s degree in Education in terms of the notification issued by it under the UGC Act in terms of Section 22. In that sense, the matter is put to rest in terms of recognition of M.Ed. as a post-graduate degree by the competent authority.” “The question of equivalence, as submitted by respondent No.4/UGC was to be left to the NCTE. It is in view thereof that NCTE was added as a party (respondent No. 5) and has, once again, put forth its position quite unequivocally. The NCTE has drawn a distinction between the two degrees to the extent that while M.A. (Education) is a degree in the discipline of Education, the M.Ed. degree is a practitioner’s degree. Reference has also been made to a Committee constituted in pursuance of the impugned judgment, which is an expert committee. In view of the recognition of the M.Ed. programme of one-year duration, in order to acquire an M.Ed. degree, one has to spend two years after the first degree because for an M.Ed. degree, a B.Ed. degree is mandatory. It is in these circumstances a conclusion was reached that, from the point of view of duration and curricular inputs, M.Ed. qualifies itself as a master’s programme in Education and is even recognised by the UGC and NCTE as such. In a sense this puts to rest one of the controversies raised by respondent No. 3, i.e., initially M.Ed. was a one-year programme, and only subsequently converted into a two-years programme in 2015, as this very issue has been examined by an expert committee of the NCTE, and the NCTE concluded in favour of the appellants. There is also a categorical statement in the last paragraph of the counter affidavit of the NCTE to the effect that the M.Ed. is a master’s degree recognised by apex bodies like the UGC and NCTE for appointment as Assistant Professor in Education and they are also eligible for the NET/SLET/JRF.” “We say so in view of the fact that matters of education must be left to educationists, of course subject to being governed by the relevant statutes and regulations. It is not the function of this Court to sit as an expert body over the decision of the experts, especially when the experts are all eminent people as apparent from the names as set out. This aspect has received judicial imprimatur even earlier and it is not that we are saying something new. We may refer to the pronouncement in Zahoor Ahmad Rather & Ors.10 in this behalf which has dealt with the dual aspects: (a) it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification, and (b) such matters must be left to educationists.” “We are, thus, of the view that the impugned judgment is not sustainable and has to be set aside, and the challenge to the corrigendum dated 11.7.2016 is repelled. The result having already been computed and awaiting declaration should now be declared forthwith so that persons looking for employment, as per the requisite eligibility criteria, can be employed, and so that the students have the benefit of education from the persons so employed. The appeal is accordingly allowed, leaving the parties to bear their own costs.” Click here to read the judgment | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2850 OF 2020 ANAND YADAV & ORS …Appellants STATE OF UTTAR PRADESH & ORS …Respondents JUDGMENT SANJAY KISHAN KAUL J The competing interests of post graduates having the degree of M.A.and M.Ed. has given rise to a spate of litigation and the present dispute flows from this. There are judicial precedents dealing with this issue but in a relevant factual context. Further there has been to some extent a pendulum swing in the stand of the concerned authorities in analysing this controversy based upon inputs from experts The Factual Matrix The origination of the dispute is Advertisement No. 46 which was issued by respondent No. 2 the Uttar Pradesh Higher Education Service Selection Commissionin March 2014 inviting applications for the post of Assistant Professors in various subjects including ‘Education’. The candidature of appellant No. 2 was rejected on the ground that he did not fulfill the minimum criteria set out by the University Grants Commission respondent No. 4 although he had an M.Ed. Degree. This caused the said appellant to approach the High Court by filing Writ A No. 615 The process in pursuance of the aforesaid advertisement was nearly completed while the writ petition was still pending and a subsequent advertisement i.e. Advertisement No. 416 was issued This was once again for the post of Assistant Professor in various subjects including hundred posts in ‘Education’ in Government aided non Government universities. The eligibility criteria for the same was specified in para 6 of the advertisement the relevant portion of which reads as under “Minimum Educational Qualifications 6. Mandatory Educational Qualification The prescribed minimum educational qualification for the post of Assistant Professor mentioned in this advertisement is described 6.1 For the post of Assistant Professor for the subjects other than Singing and Fine Arts 6.1.1 Good academic record with 55 Percent score in relevant subject at Post Graduate Level or U.P. State Level Eligibility Test or State Level Eligibility Test as conducted by University Grants Commissionthe requirement of a 55 per cent score in a relevant subject at the Post Graduate Level or with a similar scoring in relation to grades wherever there is a grading system and passing marks in the National Eligibility Testor U.P. State Level Eligibility Testor State Level Eligibility Test as conducted by UGC The controversy which arose from the aforesaid was on two aspects:would an M.Ed. Degree be treated as an equivalent degree to M.A.for the purposes of appointment to the post of Assistant Professor andeven if it was treated as an equivalent could it be said that an M.Ed. is a post graduation in the relevant subject In order to resolve the issues respondent No. 2 constituted a four member expert panel to render its opinion on the said subject. This panel consisted of four eminent persons: Professor Bhoo Dev Singh Professor and Dean of the Department of Education Banaras Hindu University Varanasi Professor P.C. Shukla Department of Education Banaras Hindu University Professor Amita Bhajpayee Department of Education Lucknow University and Professor P.K. Sahu Department of Education Allahabad University The opinion of the four experts was unanimous and was received with their inputs. Thus according to Professor Bhoo Dev Singh the test conducted for the NET JRFcertificate is the same for both students with an M.A. and an M.Ed Degree with the test being conducted on the same day at the same time with the same syllabus same items and the same paper. The consequent certificate issued was only on the subject of ‘Education’ and there was no separate mention of either of the two degrees. The advertisement issued in 2016 did not specify either of the aforesaid two qualifications but only that there should be a post graduation with requisite marks in the relevant subject. Professor P.C. Shukla also opined that for the post of Assistant ProfessorFaculty of Arts the degree of M.Ed. as well as the qualification of M.A.should be accepted more so as the students holding an M.Ed. degree have completed a graduation degree of B.Ed. These two opinions were concurred with by the other two experts The aforesaid resulted in the issuance of a corrigendum of 11.7.2016 by the UPHESSC respondent No. 2 for the posts in question It is this corrigendum which was assailed before the High Court by respondent No. 3 who was an applicant under both the advertisements in Writ A No. 161217 In order to appreciate the aforesaid it would be appropriate to take note of two aspects. Firstly as far back as 1.12.1958 the UGC respondent No. 4 had issued a list of degrees for the purposes of Section 22 of the University Grants Commission Act 1956wherein it was specified that the Master’s Degree would inter alia include an M.A. and M.Ed. The said Section specifies the right of conferring or granting degrees shall be exercised only by a University established or incorporated in terms of sub section 1) of Section 22 while sub sectionstipulates what a degree would mean. The Section reads as under “22. Right to confer degrees. 1) The right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant 2) Save as provided in sub sectionno person or authority shall confer or grant or hold himself or itself out as entitled to confer or grant any degree For the purposes of this section “degree’ means any such degree as may with the previous approval of the Central Government be specified in this behalf by the Commission by notification in the Official Gazette.” Secondly on 30.6.2010 the UGC respondent No. 4 issued the University Grants Commission Regulations 2010 (these Regulations were inter alia amended in 2016 and 2018). Regulation 4.4.1 dealt with the qualifications of Assistant Professor inter alia in ‘Education’ and stipulated that a good academic record with at least 55 per cent marks with a Master’s Degree in the relevant subject from an Indian university or an equivalent degree from an accredited foreign university along with having cleared the NET or similar other tests. Regulation 4.4.7 contains the qualifications prescribed by respondent No. 5 National Council for Teacher Education for short ‘NCTE’) for faculty positions. The relevant portion of the Regulation reads as under “4.4.7. QUALIFICATIONS PRESCRIBED FOR FACULTY POSITIONS IN THE REGULATIONS OF NCTE A. QUALIFICATIONS FOR B. Ed. COURSE ii) ASSISTANT PROFESSOR a. Foundation Courses 1. A Master’s Degree in Science Humanities Arts with 50% marks or an equivalent grade in a point scale wherever grading system is 2. M.Ed. with at least 55% marksand 3. Any other stipulation prescribed by the UGC any such affiliating body State Government from time to time for the positions of principal and lecturers shall be mandatory 1. M.A. in Education with 55% marks2. B.Ed. with at least 55% marksand 3. Any other stipulation prescribed by the UGC any such affiliating body State Government from time to time for the positions of principal and lecturers shall be mandatory The challenge laid by respondent No. 3 in the writ petition was primarily predicated on grounds that i) In a previous consideration in Dr. Prit Singh v. S.K. Mangal Ors. 1 this Court had opined that an M.Ed. degree would not be at par with an M.A.degree ii) A similar view as aforesaid was taken by the Himachal Pradesh High Court in Praveen Kumar v. State of Himachal Pradesh Ors.2 which held that an M.Ed. degree is not a master’s degree but is only a training qualification iii) Advertisement No. 46 of 2014 only prescribed a minimum qualification of M.A. for the post of Assistant Professor in Education and an Expert Committee constituted pursuant to this advertisement also opined that M.A.Advertisement No. 416 as initially issued did not make M.Ed. candidates eligible for appointment as Assistant Professors in Education and it was only few days before the last date for 1 1993 SuppSCC 714 2 2014 SCC OnLine HP 4307 submission of application forms that the corrigendum dated 11.7.2016 was issued and v) NCTE respondent No. 5 in their reply dated 4.10.2016 to the respondent No. 3had stated that M.A.is a master’s degree in the subject concerned M.Ed. is not so as it is only a training qualification. The conclusion reached was that an M.Ed. qualified person could not be appointed to the post of Assistant Professor in Education and consequently the corrigendum dated 11.7.2016 was quashed 14. Respondent No. 2 in compliance with the aforesaid decision in its meeting held on 5.9.2018 decided to change the qualifications prescribed for the post of Assistant Professor in Education so as to only treat candidates with M.A.as eligible for the said post The candidates who had M.Ed. qualifications were naturally aggrieved and twelve of such candidates filed a Special Leave Petition before this Court along with an application for leave to file the same impleading the first three respondents who were parties before the High Court. Subsequently other appellants who were similarly situated joined in and were impleaded as appellant Nos. 13 to 213 vide order dated 31.8.2018. On a consideration of the controversy UGC was impleaded as respondent No. 4 vide order dated 31.8.2018. Learned Senior Counsel for the appellants Mr. P.S. Patwalia submitted that the interest of the appellants was only in participating in the 2016 selection process for the post of Assistant Professor in Education for which the last date of application was 14.7.2016 and for which the corrigendum had been issued on 11.7.2016. Accordingly this Court recorded that the pendency of the Special Leave Petitions would not stand in the way of the competent authority proceeding with appointment of candidates of the selection process commenced in the year 2014 since the appellants were not challenging the said process. Thus a quietus was sought to be put to the selection process of 2014 In view of the postponement of the examination in terms of order dated 12.10.2018 an interim order was passed provisionally permitting the candidates with M.Ed. to participate in the selection process but the result was to be produced in a sealed cover to the Court as and when the same was ready. It was clarified that this order was confined only to those persons who were parties intervenors impleaders and were before the Court on that date as all of them were stated to have submitted the applications before the cut off date of 14.7.2016. The latter aspect was clarified by an order dated 10.12.2018 that the cut off date would be reckoned as 5.8.2016 since the same had been modified by the competent authority itself. Any other grievances regarding rejection of an application on account of the same not being in conformity with the eligibility criteria were opined not to form a part of the proceedings before this Court and would have to be assailed in separate proceedings In view of the affidavit filed by the UGC it was considered appropriate to implead NCTE respondent No. 5 in terms of the order dated 15.1.2020 The ground level development which took place was that 6793 candidates were invited to appear for the written examination which took place on 12.1.2019 for the post of Assistant Professorand the final answer key were published on 29.5.2019. The successful candidates were shortlisted for interviews which were conducted from 18.2.2020 to 27.2.2020. The results were accordingly sought to be submitted in a sealed cover before this Court. The results were however not declared The COVID 19 situation intervened and when the matter came up ultimately on 31.7.2020 it was deemed appropriate to hear the matter finally in view of the educational requirements and thus leave was granted and arguments proceeded. The occasion to peruse the results thus did not arise It would be relevant to turn to the affidavit of the UGC at this stage which unequivocally stated that both M.A.and M.Ed degrees are specified as master’s level degrees. Per Clause 8 of the University Grants Commissiondegree may be awarded only after a student successfully completes a minimum of two years after the first degree. The affidavit also made a reference to Regulation 4.4.1 of the UGC Regulations which required inter alia “Master’s Degree level in a relevant subject.” The advertisement and corrigendum issued by respondent No. 2 was thus not found to be in derogation of the UGC Regulations but it was opined that the UGC does not determine the equivalence of degrees. It was also opined that M.A.is a regular programme while M.Ed. is a professional programme. The concerned authority to go into such equivalence was the NCTE respondent No. 5 and this is what eventually caused the impleadment of the NCTE 20. On notice being issued the NCTE filed a counter affidavit. The difference in approach and curriculum of the two degrees is set out in “13. It is submitted that the M.Ed programme is a specifically designed as a practitioner’s degree for students who wish to acquire the knowledge skills and experience necessary to work in a professional field. As a professional degree the M.Ed. is intended for students who wish upon graduation to assume positions of leadership in a practical setting or positions requiring more advanced study than that available at the bachelor’s level e.g. as an instructional technologist or as a district resource teacher). The M.Ed. is not a research degree in the sense that the student is not required to carry out and defend an independent research project. However the M.Ed. programme is nevertheless research based in that consideration of educationally relevant research constitutes a major focus of study and students are normally required to take a number of research relevant courses e.g. statistics courses) whereas MA Degree is mainly intended for students interested in conducting a research study or who wish upon graduation to assume a research position or to proceed to doctoral level studies. Accordingly the M.A. programme is designed specifically as a research degree with students required to carry out and complete an independent research project Master’s Thesis). Completion of a master’s thesis is viewed as a pre requisite for the pursuit of doctoral studies in most In view of what was stated the conclusion was set out in para 14 of the counter affidavit to the effect that the M.Ed. is a master’s degree recognised by apex bodies like UGC and NCTE for appointment as an Assistant Professor in Education and persons with such a degree are also eligible for NET SLET JRF while M.A.is also a master’s degree but is not a professional master’s degree and therefore a comparison of M.A.with M.Ed. is not tenable The counter affidavit of NCTE annexed the minutes of a meeting constituted to re examine the issue of equivalence of NCTE recognised M.Ed. programme of one year duration with that of M.A.which met on 27th and 28th September 2018. The members of the Committee were as under i. Prof. Mohammed Miyan Professor of Education and former Vice Chancellor Maulana Azad National Urdu University Hyderabad Chair of the Committee ii. Dr. Renu Batra Additional Secretary UGC New Delhi iii. Prof. Ramesh Ghanta President Indian Association of Teacher Education Ex Professor of Maulana Azad National Urdu University Hyderabad Member iv) Dr. S.K. Chauhan Under Secretary NCTE Convenor The background of the meeting was the judgment of the High Court which has been impugned before us. It would be useful to reproduce the relevant portion of the minutes as they reflect directly on the controversy and the same reads as under “1. It is historically a proven fact that B.Ed. and M.Ed programmes are professional in their nature and primarily aim at preparing the teachers for the school system and also teacher educators for teacher education institutions. These courses are run almost for the last one century without any dispute with regard to their nature and professionalism 2. It is evident from the details of the curriculum framework for programmes M.Ed. and M.A. the subjects and expected process of transaction is altogether different. The M.A Education) course is mostly designed only with a theoretical base without pedagogical orientation. Therefore M.A. is of 2 year duration course after first degree. Whereas B.Ed. is one year after first degree and M.Ed. under reference is one year programme. It means to acquire M.Ed. degree one has to spend 2 years after first degree because for admission to M.Ed. B.Ed. is mandatory Therefore from the point of view of duration and curricular inputs M.Ed. qualify itself as a master’s programme in education. M.Ed is also recognized by UGC and NCTE Apex bodies as masters’ degree in teacher education and the difference is M.Ed. is a professional degree whereas M.A.programme is offered in comparison to M.Ed programme offered by the same university or by other universities in the country it is observed that the focus in M.A.is on theoretical aspects of education leaving no place for pedagogy or school experience and community engagement. Whereas in the case of M.Ed. the curriculum offered in continuation of B.Ed course the programme focus on the foundation courses at advanced level. Further the course work is designed in addition to the above pedagogical orientation school and community engagement are well integrated as such one can construe on the basis of curricular inputs of these two courses. M.Ed. students are having an integral orientation to education whereas M.A Education) students are grounded in theory alongwith allied aspects of education without professional orientation 5. NCTE also makes M.Ed. M.A. with B.Ed. as eligible for the post of Assistant Professoris also a masters’ degree but not a professional masters’ degree and therefore comparison of M.A. with M.Ed. is not tenable. Therefore wherever B.A. or M.A Education) courses are offered to teach the courses along with M.A.M.Ed. candidates are also eligible.” The Case of the Appellants The contours of the submissions of the learned Senior Counsel for the appellants Mr. P.S. Patwalia rest in the following terms i. While emphasising on the question required to be determined in this case of eligibility to be appointed to the post of Assistant Professor on the strength of their M.Ed. degree it was contended that neither the appellants nor similarly situated candidates nor statutory authorities respondent Nos. 4 & 5 were impleaded as parties before the High Court ii. Respondent No. 4 on being impleaded had clearly opined that M.Ed. degree is indeed as master’s degree in education but that they did not determine the equivalence of degrees power for which vests with respondent No. 5 iii. Respondent No. 5 on the basis of a four member Committee constituted to re examine the issue of equivalence of NCTE recognised M.Ed. programme with that of M.A.from the point of view of duration and curricular inputs M.Ed. is a master’s programme in education as recognised by respondent Nos. 4 & 5 is an academic degree i.e. it is a degree in the discipline of education andCandidates with an M.Ed degree are eligible for appointment to the post of Assistant Professorand can teach B.A.and M.A.courses The candidates possessing M.Ed. qualification are eligible for appointment and whether M.A.and M.Ed are equivalent is irrelevant for this case The UGC respondent No. 4 had issued a public notice stating that equivalence of degrees is decided by the employing organisation and in the present case respondent No. 2 being the employing organisation sought the opinion of the expert panel and thereafter took a decision which was impugned in the writ petition permitting M.Ed. degree as an eligible qualification for appointment. Thus the correctness of such a decision based on the view of experts ought not to be questioned or gone into in judicial review Several institutions across different States are considering persons with an M.Ed. degree for such appointments The judgment in the Dr. Prit Singh5 case is clearly distinguishable on the facts as in that case a separate degree in education was required. The controversy related to qualifications prescribed for the post of Principal of a recognised college of education. The qualifications were as A good academic record with at least first or high second class grade B in the seven point scale) at Master’s Degree in Education and not necessarily also at Master’s Degree in the relevant subject relaxable work of very high standard or University approved teacher before January 27 1976 b) No change a) A consistently good academic record with first or high second class Master’s Degree in any subject and also a degree in education of an Indian University or equivalent degree of foreign Universityand b) An M. Phil degree or a recognised degree beyond the Master’s level or published work indicating the capacity of a candidate for independent research work: Provided that if a candidate possessing the qualifications as at b) is not available or not considered suitable the college on the recommendation of Selection Committee may appoint a person possessing the qualification as at2 SCC 189 obtaining the NET certificate and the successful candidates are not distinguished on the basis of their degree. Since the passing of NET or equivalent is mandatory all candidates who have passed NET are eligible for appointment The judicial review has no place to determine the ambit and equivalence of qualification and thus even assuming that an M.Ed. degree is not equivalent to M.A.degree that is something to be left to the experts and the employing authority. In this behalf the observations in Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors.8 were relied upon by the appellants to the following effect “26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K.2 SCC 170. The decision in Jyoti K.K.turned on the provisions of Rule 10(a)(ii). Absent such a rule it would not be permissible to draw an inference that a higher qualification necessarily pre supposes the acquisition of another albeit lower qualification. The prescription of qualifications for a post is a matter of recruitment policy The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit 82 SCC 404 of the prescribed qualifications. Similarly equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State as the recruiting authority to determine. The decision in Jyoti K.K.must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K.turned.” The Case of Contesting Respondent No.3 Learned Senior Counsel Ms. Meenakshi Arora put forth that There have been judicial pronouncements of various High Courts to the effect that M.A.and M.Ed. are different courses. An earlier observation of the Allahabad High Court in Writ A No.65853 2015 decided on 14.3.2016 was referred to where Section 27 of the Uttar Pradesh State Universities Act 1973 was discussed. This required each faculty to comprise such subjects of teaching as may be prescribed. The Section emphasised how each faculty is a different cadre in itself and there cannot be an interchange of any faculty member from one faculty to another Also teaching staff of ‘Education’ under the Faculty of Arts are not entitled to impart education to students perusing B.Ed. and M.Ed. nor can they set papers or moderate courses for the two Respondent No. 5 took a stand before the Gujarat High Court in Special Civil Application No. 2425 2016 that M.A and M.Ed. are two different programmes and contrary to the advice of respondent No. 4 herein equivalence of degrees is not within its competence The Ministry of Human Resource Development Government of India through its Under Secretaryin an RTI reply stated that M.A.is a post graduate degree to teach at the college level whereas M.Ed. is only a professional degree for teaching in schools The advertisement No. 416 was in respect of 100 seats in Education and in these vacancies there were no seats for B.Ed. is an academic degree whereas M.Ed. is only a professional degree. The Degrees are different and belong to two different streams of discipline in education and their apex bodies are also different. Para 3.0 of Chapter 39 of the UGC Recommended Syllabus of Education was relied upon in this behalf which reads as under ““Education as an Academic Discipline” and education as preparation of teachers and other professionals for service in the field are two distinct streams of course in education. The M.A Education) is a Master of Arts in Education and M.Ed. is Master of Education and both are not equivalent. M.A. is purely Academic whereas M.Ed. is professional and their apex bodies are different. These two courses are different and being streams of discipline of education they cannot be taken at par.” The distinction has also been recognised in Dr. M.S. Mudhol Anr. v. S.D. Halegkar & Ors. 9 The relevant portion of which reads as “4. The contention of the respondents that M.Ed.2nd Division was equivalent to M.A. 2nd Division is obviously fallacious. The former is the academic qualification while the latter a professional qualification. Secondly the course of the former is whole time spread over no less that two years while the course of the latter is part time and is spread over one year. In any case the statutory rule with regard to the essential qualifications is very clear inasmuch as it requires both academic Masters’ degree and the teaching degree the latter being not the substitute for the former. What is further while laying down the qualifications with regard to the academic degree viz. the Masters’ degree the rule insists upon 2nd Division for such degree. It does not insist upon a 2nd Division degree in teaching. A pass degree is sufficient in its eyes. It would therefore amount to distorting the requisite qualifications under the rules to attempt to substitute the teaching qualification for the academic qualification and exchanging the divisions of the two .” viii. The expert opinion dated 15.5.2014 was obtained from Professors of Rajarshi Tandon Open University Allahabad and Allahabad University in pursuance of advertisement No. 46 of 93 SCC 591 2014. Candidates with M.Ed. degree were found not entitled to participate in the selection process. The qualifications in the 2014 and the 2016 advertisements are the same. The expert panel constituted for purposes of advertisement No. 416 which is in question gave their opinion without basing it on any data and without comparing the syllabus of both the courses View which we Seek to Adopt 25. We have analysed the records and considered the submissions of the learned counsels for the parties 26. We must at the inception express our reservation about the manner in which the writ petition was filed and a decision was taken in the impugned order of the High Court without even calling upon the relevant authorities i.e. the UGC and the NCTE to put forth their stand The first authority is undisputedly the one to determine and specify the nomenclature of degrees while the second is the authority of teacher education. Whatever has been the earlier position as is sought to be relied upon of the Gujarat High Court the same is no more in doubt. A decision based in the absence of concerned authorities is likely to and has caused confusion 27. We are also of the view that affected candidates or at least some of them in a representative capacity were bound to be heard and no decision could have been taken behind the back of these candidates 28. We are thus of the view that it is only before this Court that the complete contours of the controversy have emerged and the stand of all the relevant parties have been sought to be examined The stand put forth before us by the UGC respondent No. 4 is unequivocal in its terms that M.Ed. degree is indeed a master’s degree in Education in terms of the notification issued by it under the UGC Act in terms of Section 22. In that sense the matter is put to rest in terms of recognition of M.Ed. as a post graduate degree by the competent The question of equivalence as submitted by respondent No.4 UGC was to be left to the NCTE. It is in view thereof that NCTE was added as a partyand has once again put forth its position quite unequivocally. The NCTE has drawn a distinction between the two degrees to the extent that while M.A.is a degree in the discipline of Education the M.Ed. degree is a practitioner’s degree Reference has also been made to a Committee constituted in pursuance of the impugned judgment which is an expert committee. In view of the recognition of the M.Ed. programme of one year duration in order to acquire an M.Ed. degree one has to spend two years after the first degree because for an M.Ed. degree a B.Ed. degree is mandatory. It is in these circumstances a conclusion was reached that from the point of view of duration and curricular inputs M.Ed. qualifies itself as a master’s programme in Education and is even recognised by the UGC and NCTE as such. In a sense this puts to rest one of the controversies raised by respondent No. 3 i.e. initially M.Ed. was a one year programme and only subsequently converted into a two years programme in 2015 as this very issue has been examined by an expert committee of the NCTE and the NCTE concluded in favour of the appellants. There is also a categorical statement in the last paragraph of the counter affidavit of the NCTE to the effect that the M.Ed. is a master’s degree recognised by apex bodies like the UGC and NCTE for appointment as Assistant Professor in Education and they are also eligible for the NET SLET JRF 31. We may also notice another important aspect i.e. the employer ultimately being the best judge of who should be appointed. The choice was of respondent No. 2. who sought the assistance of an expert committee in view of the representation of some of the appellants. The eminence of the expert committee is apparent from its composition. That committee after examination opined in favour of the stand taken by the appellants and respondent No. 2 as employer decided to concur with the same and accepted the committee’s opinion. It is really not for the appellants or the contesting respondent to contend how and in what manner a degree should be obtained which would make them eligible for appointment by respondent No. 2 32. We hasten to add that it is not our view that an employer like respondent No. 2 can do as they please they are guided and bound by the terms of the UGC Act and the regulations thereunder but then here there is no doubt about the M.Ed. degree being a post graduate degree in view of not only what the UGC stated before us but having promulgated the relevant Regulations as far back as 2010 as amended from time to time. The issue of equivalence has been rightly considered by the NCTE and while recognising some distinct aspects of two the degrees it has clearly stated that for the job of Assistant Professorsboth are 33. We may notice that it is not as if a person with an M.Ed. degree is eligible for all the posts which were advertised for Science Arts and others. Their eligibility has been found only for the post of Assistant Professor which is directly relatable to the subject to be taught. We do not think the fact that both M.Ed. and M.A.it is for the employer to consider what functionality of qualification and content of course of studies would lead to the acquisition of an eligible qualification andsuch matters must be left 35. We have also gone through the judgment in the Dr. Prit Singh11 case. The impugned order of the High Court has almost been predicated entirely on this judgment as if there was no issue alive to be dealt with even though the distinction was recognised in a subsequent judgment of the Dr. Ram Sevak Singh12 case. It is trite to say that often a proposition of law as laid down in a case is as good as the facts of the case. The Dr Prit Singh13 case was concerned with the dual requirements in the relevant advertisement i.e. a post graduate degree in any subject and a degree in Education. There is no such dual qualification laid here. Not only that the recruitment was for the post of a Principal and that too the case was concerned with a person with qualifications of not much eminence in terms of the marks obtained. There was an endeavour to help out the candidate by even amending the norms and thus the Court rightly came to the conclusion that the same was not appropriate. We are dealing with different norms for the concerned advertisement a requirement of having a degree in the relevant subject in this case being ‘Education’ and for eligible persons to have the requisite marks. We thus fail to understand how the judgment in the Dr. Prit Singh14 case can be considered a binding precedent in the factual contours of the present case more so in view of the observations made in the Dr. Ram Sevak Singh15 case clearly setting out as to what was the actual basis of the opinion in the Dr. Prit Singh16 case 36. We may note that sometimes without looking into the real ratio decidendi a judgment is followed as a precedent. This is what appears to have happened in the impugned order. There are even some other judgments of the High Courts which in turn were then sought to be relied upon to canvas a proposition that there is a widespread acceptance of M.Ed. not being equivalent to M.A. (Education). That they are two different degrees is obvious this is even recognised by the NCTE while emphasising the subtle distinction between the two degrees as one being a master’s degree but not a professional degree while the other being a professional degree. If the two degrees are identical there is no question of equivalence. The issue of equivalence only arises when there are two different degrees and what is to be decided whether for certain purposes they can be treated as equivalent. This is exactly what has happened as a result of the respective expert committees set up by respondent Nos. 2 5. The employer i.e. respondent No. 2 had accepted the recommendation of the expert committee. The UGC has also taken a stand that insofar as the two degrees are concerned both are post graduate degrees and the equivalence authority being respondent No.5 has also opined on the basis of an expert committee that the two can be treated as equivalent for the post of Assistant Professor in Education Thus it is neither for the contesting party i.e. respondent No.3 nor for this Court to sit as a court of appeal over the decision of the experts. We may also note that respondent No.3 has in fact been selected in the 2014 selection process as per the final list released on 22.5.2018 37. We are thus of the view that the impugned judgment is not sustainable and has to be set aside and the challenge to the corrigendum dated 11.7.2016 is repelled. The result having already been computed and awaiting declaration should now be declared forthwith so that persons looking for employment as per the requisite eligibility criteria can be employed and so that the students have the benefit of education from the persons so employed The appeal is accordingly allowed leaving the parties to bear their October 12 2020 Sanjay Kishan Kaul IN THE CIVIL APPEAL No. 28520 SUSHIL KUMAR PANDEY & ORS …Appellants O R D E R THE STATE OF UTTAR PRADESH & ORS …Respondents SANJAY KISHAN KAUL J This appeal arising out of the order dated 14.5.2018 passed in Writ A No. 615 seeks to assail the recruitment process concerning Advertisement No. 414 which in the appeal being Civil Appeal No. 2850 2020 we have decided today was given up by the counsel for the appellants. We are not inclined to open the whole selection process of 2014 which already stands completed and had a different advertisement We have thus confined our judgment to the selection process of 2016 In consequence of the aforesaid this appeal is dismissed October 12 2020 Sanjay Kishan Kaul |
Accused and Co-Accused released on bail when investigation completed and no scope for tampering evidence or fleeing from Justice: Himachal Pradesh High Court | On hearing a case under section 363, 366A, 376, 120B of IPC and section 4 of the POCSO act, it was decided when the investigation is complete and there is no scope for fleeing from justice the bail may be granted. This judgment was passed in the case of Geeta Gupta vs. State of Himachal Pradesh with Susheela vs. State of Himachal Pradesh and Rahul Dhawan @Dolly vs. State of Himachal Pradesh [Cr.MPs(M) No. 604 -606/2021] by a Single Bench consisting of Hon’ble Shri Justice Chander Bhusan Barowalia. The petitioners Geeta and Susheela filed for grant of bail under section 438 of the Code of criminal procedure (Cr.P.C) while Rahul Dhawan filed for a grant of bail under section 439 of the same with regards to their arrest under section 363, 366A, 376, 120B of IPC and section 4 of the POCSO Act. The prosecution claims the daughter of the complainant did not return home from school (10th Class) and the wife of the complainant received a call from the prosecutrix who informed she is getting married to Rahul Dhawan, one of the petitioners. The complainant filed a case stating that the petitioner had taken his daughter and registered a case with the police. On investigation, it came to light that the petitioner picked her up and bought materials for their marriage. They married in the absence of a priest at a temple. The co-accused had taken photos of the marriage. The police procured the car that the petitioner and prosecutrix had used and the details of the hotel in which they resided along with the date of birth details. The petitioner produced the prosecutrix before the police. She was medically examined and her statement under sections 161 and 164 of Cr.P.C. was recorded. While the counsel for the petitioners argued that they are innocent and would not tamper with the evidence or witness as they are permanent residents of the place. They also stated that they will abide by all conditions in order. The Counsel for the State argued that they have committed a heinous crime with active participation. Considering the seriousness of the offence and the facts and circumstances they shouldn’t be enlarged on bail. The counsel for petitioners rebutted the claim by stating that the investigation is complete as far as the police is concerned, thus not requiring custodial interrogation. The Hon’ble High Court held that since there will be nothing fruitful out of the Custodial investigation and there is nothing left to recover from the petitioners the grant of bail would be exercised in their favour. Furthermore, the petitioners are co-operating in the investigation and their permanent residence is local there is no question of fleeing from justice or tampering with the evidence and witnesses. Based on the above grounds the petitioners were granted bail. Geeta and Susheela were granted bail on furnishing a bond of Rs. 25000/- and Rahul Dhawan on furnishing a bond of Rs. 50000/-. | Hig h C o urt of H.P on 12 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MPs(M) No. 604 to 6021 Decided on: 06.05.2021 1. Cr.MP(M) No. 6021: Geeta Gupta ….Petitioner Versus State of Himachal Pradesh …Respondent 2. Cr.MP(M) No. 6021: Susheela ….Petitioner Versus State of Himachal Pradesh …Respondent 3. Cr.MP(M) No. 6021: Rahul Dhawal @ Dolly ….Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia Judge. Whether approved for reporting 1 Yes. For the petitioner(s): Mr. Arvind Sharma Advocate. For the respondent State: Mr. S.C. Sharma Additional Advocate General. ____________________________________________________________________ Chander Bhusan Barowalia Judge.The matter is taken up through video conference. 2. Petitioners Geeta Gupta and Susheela have maintained petitions under Section 438 of the Code of Criminal Procedure for grant of bail in the event of their arrest in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla 1 Whether reporters of Local Papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 12 05 HCHP 2District Shimla H.P. Petitioner Rahul Dhawan @ Dolly maintained a petition under Section 439 of the Code of Criminal Procedure for grant of bail in the above case. As all the petitions arise out of one incidence hence taken up together for consideration and disposal. 3. As per the petitioners they are innocent and have been falsely implicated in the present case. They are permanent residents of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice so they may be released on bail. 4. Police report stands filed. As per the prosecution on 06.03.2021 complainant made a written complaint to the police wherein it has been alleged that the prosecutrix daughter of the complainantwho studies in 10 class did not return home on 06.03.2021 after attending the school. In the evening wife of the complaint received a telephonic call and the prosecutrix informed that she is getting married with one Rahul Dhawan @ Dolly clicked photographs of the marriage ceremony from the mobile phone of petitioner Rahul Dhawan @ Dolly. Co accused Geeta Gupta and Susheela have already been enlarged on interim bail by this Court vide order dated 26.03.2021. It has further come in the police report that the police effected the relevant recoveries. As per the police investigation in the matter is complete and now challan is under consideration and will be filed soon. Lastly it is prayed that the applications of the petitioners be dismissed as they were found involved in a serious crime the petitioners in case at this stage are enlarged on bail they may tamper with the prosecution evidence and may also flee from justice. 5. I have heard the learned Counsel for the petitioners learned Additional Advocate General for the State and gone through the records including the police report carefully. 6. The learned counsel for the petitioners has argued that the petitioners are innocent and they are neither in a position to Hig h C o urt of H.P on 12 05 HCHP 4tamper with the prosecution evidence nor in a position to flee from justice as they are permanent residents of the place. He has further argued that investigation in the matter is complete nothing remains to be recovered either from the petitioners or at their instance custody of the petitioners is not at all required by the police. The petitioners are ready and willing to be abide by the terms and conditions of bail in case granted so considering all the facts and circumstances which emerge the petitions may be allowed and the petitioners may be enlarged on bail. Conversely learned Additional Advocate General has argued that the petitioner Rahul Dhawan @ Dolly has committed heinous crime and other petitioners Geeta Gupta and Susheela played an active role in commission of the crime. He has further argued that in case at this stage the petitioners are enlarged on bail they may flee from justice or tamper with the prosecution evidence. Considering the seriousness and gravity of the offence and overall facts and circumstances of the case the bail applications of the petitioners may be dismissed. 7. In rebuttal the learned Counsel for the petitioners have argued that the petitioners are local residents of the place and thus they are neither in a position to flee from justice nor in a position to tamper with the prosecution evidence and the custodial interrogation of the petitioners is not at all required by the police as the investigation is complete and now the custody of the petitioners is not at all required. He has further argued that sending the petitionersbehind the bars will not Hig h C o urt of H.P on 12 05 HCHP 5serve any fruitful purpose and keeping petitioner Rahul Dhawan @ Dolly behind the bars for an unlimited period will also not serve any purpose as his custody is not at all required by the police and nothing remains to be recovered at his instance so the petitions be allowed and the petitioners be enlarged on bail. 8. At this stage considering the manner in which the incident is alleged to have taken place the fact that all the petitioners are residents of the place so neither in a position to flee from justice nor in a position to tamper with the prosecution evidence considering the fact that investigation in the matter is complete nothing remains to be recovered either from the petitioners or at their instance petitioners Geeta Gupta and Susheela are joining the investigation and co operating in it custody of the petitioners is not at all required by the police the fact that by sending the petitioners Geeta Gupta and Susheela behind the bars will not serve any fruitful purpose and also the fact that keeping petitioner Rahul Dhawan @ Dolly behind the bars for an unlimited period will also not serve any fruitful purpose especially when investigation is complete nothing remains to be recovered either from the petitioners or at their instance and also considering the fact that the petitioners are ready and willing to abide by the terms and conditions of bail in case granted and also considering all the facets of the case and without discussing them elaborately this Court finds that the present is a fit case where the judicial discretion to admit the petitionerson bail in the event of their arrest in this case is required to be Hig h C o urt of H.P on 12 05 HCHP 6exercised in their favour. Accordingly their petitions are allowed and it is ordered that the petitioners Geeta Gupta and Susheela in the event of their arrest in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla District Shimla H.P. shall be released on bail forthwith subject to their furnishing personal bond in the sum of Rs.25 000 each with one surety each in the like amount to the satisfaction of the Investigating Officer. 9. As far as petitioner Rahul Dhawan @ Dolly is concerned he is also enlarged on bail in case FIR No. 121 dated 06.03.2021 under Sections 363 366A 376 120B IPC and Section 4 of POCSO Act registered at Police Station New Shimla District Shimla H.P. subject to his furnishing personal bond in the sum of Rs. 50 000 with one surety in the like amount to the satisfaction of the learned Trial Court. 10. The petitioners are granted bail subject to the following conditions: That the petitioners will appear before the learned Trial Court Police authorities as and when required. That the petitioners will not leave India without prior permission of the Court. That the petitioners will 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 the Investigating Officer or Court. Hig h C o urt of H.P on 12 05 HCHP 7 Cr.MP(M) No. 604 to 6021 11. In view of the above the petitions are disposed of. Copy dasti. 6th May 2021 Judge |
Connection between ‘the fact discovered’ and offence should be established explicitly to charge the accused: Orissa High Court | In case there is no establishment of the connection between the weapon of offence and the death of the deceased then, the defence cannot be held guilty. Deciding on a Criminal Appeal against judgement given by the Session Court, KandhamalBoudh, Phulbani in Sessions Trial Case No.34 of 1998, the Divisional Bench of Justice S. K. Mishra and Justice Pramath Patnaik decided in the case of Ranjan Kumar Bisoi and Anr. V. State of Orissa [CRLA No.29 of 2002] that the decision taken by the session judge was erred and that the accused will not be held guilty In the given case, the accused were sentenced under Sections 302 and 201/34 of the Indian Penal Code, 1860 by the Session Judge. However, on deciding upon the CRLA filed by the accused, the Orissa High Court held that in the instant case wherein, the accused was framed for murdering the deceased, the grounds for framing him with the offence however, by the prosecution were not established strongly enough to find the accused as guilty. In the case, the charge of murder was made on the two accused by the deceased mother. She also made a charge that Appellant 1 tried to rape her months before the missing and death of her son. However, there was no evidence supporting the same, the mother has not stated this fact in her statement recorded to the Investigating Officer. Moreover, a contradiction in the shape of major omission in the previous statement made by her has been stipulated by the defence. Also, no F.I.R. was lodged for such an incident and no investigation has been made in any direction. And only the statement made by the deceased mother was taken into count while charging the accused for the offence. In addition to it, the discovery of the weapon of offence, i.e., ‘Wooden Medha’was made on the discovery statement by the accused, even though the accused changed their statement later on, to that was given before to the investigating officer, the same cannot be challenged as Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Even though the weapon of offence was discovered by statement of the accused. Still, the efforts of the prosecution to establish connection between weapon of offence i.e., ‘the fact discovered’ and murder of the deceased has not been established in this case as the weapon of offence was not even sent for chemical examination. The Court thus, observed that, “In order to establish the fact discovered which is relevant for proving a charge of commission of offence, the prosecution, must connect by cogent evidence, the crime and the fact discovered. In this case, the weapon of offence. Then the prosecution must establish that it is the weapon that was used for the commission of the crime or also ‘fact discovered’ is related to the offence alleged to have been committed. Then, there is a presumption that the offence is connected to the accused. However, it is seen that there is no establishment of the connection between the weapon of offence and the death of the deceased.” | ORISSA HIGH COURT: CUTTACK CRLA No.202 From the judgment of conviction and order of sentence dated 01.07.2002 passed by Shri M.C. Ray Sessions Judge Kandhamal Boudh Phulbani in Sessions Trial Case No.398. 1. Ranjan Kumar Bisoi 2. Kalu @ Ranjit Kumar Gauda … Appellants versus State of Orissa … Respondent For Appellants : M s. D. P. Dhal Senior Advocate R. Dash S.K. Tripathy P.K. Routray K. Dash & B.K. Panda For Respondent : Mr. A.K. NandaP R E S E N T : SHRI JUSTICE S.K.MISHRA SHRI JUSTICE P. PATNAIK Date of Hearing: 11.11.2020 & 11.06.2021 and Date of Judgment: 11.06.2021 S.K.Mishra J. In this appeal both the appellants namely Ranjan Kumar Bisoi and Kalu @ Ranjit Kumar Gauda assail their conviction under Sections 302 and 201 34 of the Indian Penal Code 1860 hereinafter referred as the ‘Penal Code’ for brevity) and sentence to undergo imprisonment for life by the learned Sessions Judge Kandhamal Boudh Phulbani in Sessions Trial No.34 of 1998 as per the judgment dated 01.07.2002. The prosecution case in brief is narrated as follows: The deceased Dhoba Muli son of P.W.8 Sasi Muli and P.W.7 Bilas Muli was called by the appellant no.1 Ranjan Kumar Bisoi from his house and thereafter Dhoba Muli was not found for several days. A missing report was lodged. Thereafter P.W.1 medical officer at Daringibadi Community Health Centre the police on 03.01.1995 that he was informed by some children that something was floating inside the waters of the well. He along with staff found a gunny bag floating in the waters of the well. The police came to the spot and brought out the floating object and found that a dead body was inside. Then he prepared inquest over the dead body. The dead body of Dhoba Muli was identified by the witnesses. Hence the O.I.C. Daringibadi Police Station on his own information drew up the formal F.I.R. registered the case and took up the investigation. In course of investigation he visited the spot examined the witnesses and recovered the dead body of the deceased Dhoba Muli from the well situated inside the campus of Daringibadi Community Health Centre in presence of the Executive Magistrate. He seized the wearing apparel of the deceased discovery the weapon of offence on the recovery statement made by both the appellants separately. After completion of investigation he submitted charge sheet against the accused persons. The defence took the plea of simple denial and false accusation due to political rivalry. The prosecution has examined 12 witnesses in this case. P.W.12 Niranjan Patra happens to be the informant as well as investigating officer in this case. P.W.7 Bilas Muli happens to be mother of the deceased Dhoba Muli. Her evidence is pivotal in this case as the prosecution relied on her evidence to prove the previous incident as well as the last seen theory. P.W.8 Sasi Muli happens to be father of the deceased and husband of P.W.7 he has searched for some and he could not find his son and submitted missing report. P.W.1 Golak Bihari Samantaray is the doctor who reported about the floating of the gunny bag in the well situated in the campus of Daringibadi Community Health CentreHomicidal nature of the dead of the deceased. 2) The previous incident stated by P.W.7 that the appellant no.1 Ranjan Kumar Bisoi tried to rape her 6 to 7 months prior to the occurrence and on the protest of the said witness and her deceased son appellant no.1 ran away from her house. 3) He remained absconding for 7 to 8 months. On the date of occurrence he came to the house of the deceased and asked him to accompany and both of them went away. Finding of the dead body after 7 to 8 days in a well situated in premises of the C.H.C. Daringibadi. 5) Absconding of the accused person. 6) Confession of accused appellants before the Leading to discovery of the weapon of offence Investigating Officer. i.e. ‘Wooden Medha’. Mr. D.P. Dhal learned senior counsel appearing for the appellants argued that the circumstances relied upon by the trial Court have not been conclusively established by the prosecution. While not challenging the findings of the learned Judge with respect to the homicidal nature of death of the deceased the learned senior counsel for the appellants very emphatically challenges the findings of the learned Trial Judge regarding attempt to rape made by the appellant no.1 Ranjan Kumar Bisoi on P.W.7 the last seen of the deceased with the appellant no.1 and the confessional statement allegedly recorded by the Investigating Officer. He would also argue that the recovery weapon of offence has not been connected to the crime. Hence the same cannot be taken into consideration as ‘the fact discovery’ under Section 27 of the Indian Evidence Act 1872 hereinafter referred to as the ‘Evidence Act’ for brevity). Mr. A.K. Nanda learned Additional Government Advocate appearing for the State on the other hand would argue that the various circumstances in this case has been conclusively established by the prosecution and the learned Sessions Judge has a perspicacious view of the materials and evidence. Hence he urged the court not to disturb the conviction of the appellants by the learned Trial Judge. As far as the homicide nature of the death of the deceased is concerned there appears to be no dispute regarding the same at the stage. Moreover from the materials available on record like evidence of P.W.9 Rakhal Chandra Behera contents of Exhibit 6 and contents of Exhibit 7 1 i.e. the opinion of Medical Officer on the examination of the weapon of offence this Court considers it inexpedient to further analyse the material available on record to come to a finding that the learned Session Judge was correct in holding that the death of the deceased was homicidal in nature. 9. The first circumstance in this case is that P.W.7 has stated that 7 to 8 months prior to the date of occurrence the appellant no.1 Ranjan Kumar Bisoi tried to commit rape on her. She has stated that in paragraph 4 of the Examination In Chief on oath at about 7 to 8 months prior to the departure of his son with the accused Ranjan Kumar Bisoi tried to rape her. She and her son protested. Hence he ran away. The accused Ranjan Kumar Bisoi absconded for 7 to 8 months. After 7 to 8 months thereafter on his return to the village accused Ranjan came to their house and called her son. At that time her son Dhoba Muli with other two minor sons was present in their house. Her husband had been to Surada in the morning of that day. Her deceased son Dhoba Muli accompanied accused Ranjan and went along with him. From that night of his going along with Ranjan Kumar Bisoi her deceased son did not return. Her husband came home on the next day of departure of her son Dhoba with accused Ranjan. He told her husband that deceased Dhoba Muli did not return home since the night before. He went along with accused Ranjan but did not return home. This witness has been relied upon by the learned Sessions Judge. In fact entire paragraph 10 of the impugned judgment has been devoted to discussion of the evidence of P.W.7 Bilas Muli. The learned Judge has held that she is a reliable witness. The learned trial Judge further observed that her evidence has not been challenged in any way in cross examination. However a reference to evidence of P.W.7 reveals that she has been cross examined by the defence and she has denied the defence suggestion that he has not stated before the Investigating Officer that prior to 7 years back accused Ranjan Kumar Bisoi came to his house in the evening hours and called her son Dhoba Muli who accompanied the accused Ranjan Kumar Bisoi and went away and that thereafter her deceased son did not return home and that she searched for her missing sons about 7 to 8 days and that her brother told that the accused Ranjan has killed her deceased son Dhoba Muli and threw the dead body into a well at Daringibadi C.H.C. and that the accused Ranjan has disclosed this fact before her brother who communicated to her. She has further denied the defence suggestion that she has not stated before the Investigating Officer in her statement recorded under Section 161 of the Code of Criminal Procedure 1973 hereinafter referred to as ‘the Code’ for brevity) that accused Ranjan came to her house about 7 to 8 months prior to the incident and that he attempted to rape her and that on protest on herself and her son accused ran away and that accused Ranjan remained absent for 7 to 8 months thereafter. A reference to the evidence of P.W.12 I.O. in this case reveals that at paragraph 12 he has stated about contradictions of P.W.7 Bilas Muli. He has stated that the said witness did not state before him that 7 years back accused Ranjan Kumar Bisoi came her house and being accompanied by the deceased left her house and thereafter her deceased son did not return home and that she searched for her missing son and that she heard from her brother that accused Ranjan killed her son and threw the dead body in the Community Health Centre Daringibadi well at Daringibadi and that accused disclosed this fact to her brother who communicated this fact to her. The witness has further proved that P.W.7 Bilas Muli has not stated before him that on 24.12.1994 accused Ranjan came to their house when she along with her three sons were present at home and that called deceased Dhoba to accompany him and that thereafter left her home. It is also borne out that she has not stated before the investigating officer that about 7 to 8 months prior to the incident accused Ranjan came to her house and attempted to rape her and that on the protest of her and her son accused Ranjan fled away from the spot and that accused Ranjan remained absent for 7 to 8 months thereafter. Thus as far as the circumstance of attempt to rape is concerned no witness is speaking about any such evidence except P.W.7. P.W.7 has not stated this fact in her statement recorded under Section 161 of the Code by the I.O. Moreover a contradiction in the shape of major omission in the previous statement made by her has been stipulated by the defence. Moreover no F.I.R. was lodged for such an incident investigation has not been made in this direction. So we are of the considered opinion that the prosecution has failed to prove that the appellant no.1 Ranjan Kumar Bisoi made an attempt to rape P.W.7 about 7 to 8 months prior to the incident of the murder of the deceased Dhoba Muli. So prosecution endeavor to attribute motive on the part of Ranjan to kill the deceased because of such previous enmity has not been established in this case. As far as the last seen theory is concerned there is a major contradiction in the evidence of P.W.7 with respect to this aspect. From the evidence of I.O. it is well established that P.W.7 has not stated before the I.O. that the accused Ranjan came to their house she along with her sons were present he called the deceased to accompany and thereafter they left her home. There is no other material to establish last seen theory of the prosecution. The evidence of P.W.7 is not reliable enough as there is a major contradiction in her evidence with respect to the previous statement recorded under Section 161 of the Code. So this circumstance is also not established by the prosecution. Next circumstance is the recovery of the dead body of the deceased which is not disputed by the defence and it is also made out from the record that the dead body was first seen by some children who informed P.W.1. P.W.1 then informed the police. The recovery of dead body of the deceased on 03.01.1995 is therefore well made out. Regarding the confession of the appellants before the investigating officer the learned senior counsel for the appellants very emphatically argued that such a confession made before the I.O. is not at all admissible. Confessions leading to discovery of weapon of offence has been marked as Exhibits 11 and 12. The learned Trial Judge committed the gross error in appreciation of evidence by taking into consideration the in culpatory portion of such statements. Reliance on the entire confessional statement is not proper. Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate shall be proved as against such person. In this case it is not the case of the prosecution that the confessional statement of Exhibits 11 and 12 has been made in the immediately presence of the Magistrate. So the confession made by the appellants should have not been included in the evidence. Only the portion of such statement leading to discovery of ‘fact’ in this case the weapon of offence in Exhibits 11 and 12 should have been taken into consideration. Taken into consideration the material fact stated in Exhibits 11 and 12 it is seen that both of appellants have on the same day gave two statements before the Investigation Officer. On 08.01.1995 while in police custody they stated that they have concealed the weapon of offence i.e. ‘Wooden Medha’ in the field of Kalidas Nayak and gave recovery of the Wooden Medha. The Medhawas seized in presence of witnesses. In order to establish the information received from the accused while in police custody against the accused section 27 of the 12 Indian Evidence Act provides an exception to Sections 25 and 27 of the Indian Evidence Act. The said section provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. In the case of Pawan Kumar Alias Monu Mittal and Another and other cases Vs. State of Uttar Pradesh and Another 7 Supreme Court Cases 148 the Hon’ble Supreme Court has held that it is settled principle of law that the statement made by an accused before the police officer which amounts to confession is bar under Section 25 of the Indian Evidence Act. This prohibition has however relaxed to some extent by Section 27 of the Indian Evidence Act which is quoted below: “27. How much of information received from accused may be proved. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved”. The Hon’ble Supreme Court further held that in the light of Section 27 of the Indian Evidence Act whatever information given by accused in consequence of which a fact is discovered only would be admissible in evidence whether such information amounts to confession or not. The Hon’ble Supreme Court further held that basic idea embedded in Section 27 of the Evidence Act is the confirmation upon consequence information given by the accused. It is further held by the Hon’ble Supreme Court that the doctrine of confirmation is founded on the principle that if any fact is discovered in a search made on strength of any information obtained from accused such a discovery is a guarantee that the information supplied by accused is true. The Hon’ble Supreme Court taking into earlier reported case of State of Maharastra v. Damu 6 SCC 269 held that the information might be confessional or non inculpatory in nature but if it results in discovery of a fact it becomes a reliable information. The Hon’ble Supreme Court further held at paragraph 13 of the said judgment that the ‘fact discovered’ in Section 27 of the Evidence Act embraces the place from which object was produced and knowledge of accused as to it but information given must relate distinctly to that effect. Judging from this angle it is seen that two witnesses i.e. P.W.10 Upendranath Patnaik and P.W.4 Prasanta Kumar Sahu have not supported the case of the prosecution as far as the discovery statement being recorded by the investigating officer. They have been cross examined by the prosecution having granted the permission by the court under Section 154 of the Evidence Act. It has been established by the prosecution that these witnesses in fact stated before the investigating officer under Section 161 of the Code regarding such statement being recorded and recovery of the weapon. However they have not supported the prosecution case. So whatever has been stated to by the P.W.12 the I.O. has been taken by the learned trial judge as to have been established by the prosecution. Whether such evidence is admissible in evidence as circumstances of discovery of the weapon of offence at the instance of the appellants has to be seen. First of all it is seen that the appellant no.1 Ranjan Kumar Bisoi gave a discovery statement recorded under Exhibit 11. The same fact has been stated to by the appellant no.2 Kalu @ Ranjit Gauda which has been Exhibited as Exhibit 12. As there is no submission with regard to this aspect we do not consider it expedient in this case to discuss the question of giving discovery of ‘a fact’ by two persons and its probative value. Moreover we find from the material on record that the weapon of offencewas recovered from an open field which is accessible to all. P.W.12 Investigating Officer has stated that he did not send the weapon of offencefor chemical test as the blood stains contain in a M.O. I has been washed away from the rain water at the time of seizure. In order to establish the fact discovered which is relevant for proving a charge of commission of offence the prosecution must connect by cogent evidence the crime and the fact discovered. In this case the weapon of offence. Then the prosecution must establish that it is the weapon that was used for the commission of the crime or also ‘fact discovered’ is related to the offence alleged to have been committed. Then there is a presumption that the offence is connected to the accused. However it is seen that there is no establishment of the connection between the weapon of offence and the death of the deceased. Such a connection can be easily established by proving the DNA of the dead body of the deceased match with the DNA sample found on the weapon of offence. It may also been established by proving the blood that was found on the weapon of offence belonging to human blood and to the same group of dead body of the deceased. In such case the court may safely conclude that the connection between weapon of offence i.e. ‘the fact discovered’ and the crime has been established. However in this case the I.O. has admitted that he has not sent the weapon of offence for chemical examination. The prosecution has attempted to establish this connection between the crime and weapon of offence by relying upon the evidence of P.W.9 Dr. Rakhal Chandra Behera who on police requisition after examining the weapon of offence opined that the injuries noticed on the dead body of the deceased Dhoba Muli could have been possible by the wooden metha M.O. I. There is no certainty in his opinion and in fact such a certain opinion cannot be given in any case. So the efforts of the prosecution to establish connection between weapon of offence i.e. ‘the fact discovered’ and murder of Dhoba Muli has not been established in this case. So Section 27 of the Evidence Act cannot be pressed into service in this Thus on analysis of the entire materials available on record we are of the firm opinion that the circumstances like the previous attempt of rape on P.W.7 last seeing of the deceased in the company of the appellant no.1 confession of the appellants and discovery of weapon of offence on the discovery statement made by the appellants are not established conclusively in this case. So there is no chain of circumstances complete in all respect unerringly pointing towards guilt of the appellants. We are of the opinion that the learned Sessions Judge committed error on record by accepting prosecution case convicting the appellants for the offence under Sections 302 and 201 34 of the Penal Code and awarding various sentences. Hence the appeal is allowed. The conviction of both the appellant no.1 Ranjan Kumar Bisoi and appellant no.2 Kalu @ Ranjit Kumar Gauda for offences under Sections 302 and 201 34 of the Penal Code by the learned Sessions Judge Kandhamal Boudh in Sessions Trial No.34 of 1998 and sentences of imprisonment for life and imprisonment for two years are hereby set aside. The appellants are acquitted of the offences. They are on bail. They be set at liberty forthwith. Their bail bonds be cancelled. Accordingly the CRLA is disposed of. The Trial Court Records be returned back to the trial court forthwith along with copy of this judgment. As the restrictions due to resurgence of COVID 19 are continuing learned counsel for the parties may utilize the soft copy downloaded copy of this order available in the High Court’s website or print out thereof at par with certified copies subject to attestation by Mr. D.P. Dhal learned Senior Advocate for the appellants in the manner prescribed vide Court’s Notice No.4587 dated 25.03.2020 as modified by Court’s Notice No.4798 dated 15.04.2021. P. Patnaik J. I agree Orissa High Court Cuttack The 11th June 2021 TDTUDU S.K.Mishra J. …. …. P. Patnaik J. …. ….. |
An employer should be sympathetic to an employee’s medical conditions when considering his representation against a transfer order: High Court of Uttarakhand | When an employee had filed representation against a transfer order due to a serious medical condition, the employer be sympathetic while considering the representation filed and the employee must not be transferred until the representation has been duly considered. This was held by a two member bench of the High Court of Uttarakhand consisting of Chief Justice Raghavendra Singh Chauhan and Justice Alok Kumar Verma in the case of Ravindra Kumar v State of Uttarakhand [Writ Petition (S/B) No. 250 of 2021] on 22nd July 2021. The petitioner, Ravindra Kumar is an employee of respondent No.3. Through the present petition he challenged the legality of the transfer order dated 24th June 2021 passed by respondent No. 2, whereby the petitioner was transferred from Dehradun to Bageshwar on a promotional post. The petitioner pointed out that he was suffering from severe back problems which were clear from the medical reports indicating straightening of lumbar spine, degenerative changes in the form of osteophytes, disc desiccation and modic type II endplate changes at multiple levels. Additionally the petitioner also suffered from diffuse disc bulge and significant narrowing of bilateral neral foraminas. The petitioner also submitted a medical certificate from Government Doon Medical College Hospital, Dehradun dated 13th July 2021 which stated that he was suffering from Bronchial Asthma and was advised for bed rest till 25th July 2021. It was contended that due to these medical conditions, the petitioner not only suffered immense pain but also inability to walk in a normal proper gait. The petitioner further contended that he had completed 58 years of service and he will have much difficulty in discharging his duties at Bageshwar where he would not have access to the necessary medical facilities. A representation had been filed by the petitioner, however despite the lapse of almost twenty days, it had not been considered by the respondents. For this reason the petitioner prayed that the respondents be directed to consider the petitioner’s representation in a sympathetic manner and to further ensure that he is posted only at a place where it will be easy for him to see the necessary medical facilities for his spinal problems. | IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE THE CHIEF JUSTICE Mr. RAGHVENDRA SINGH CHAUHAN THE HON’BLE JUSTICE Mr. ALOK KUMAR VERMA WRIT PETITIONNO. 250 OF 2021 22ND JULY 2021 Ravindra Kumar and State of Uttarakhand and others. ….Respondents Counsel for the petitioner: Ms. Prabha Naithani Advocate. Counsel for the respondents: Mr. Pandey Standing Counsel for the State of Uttarakhand. The Court made the following: JUDGMENT:With the consent of the learned counsel for both the parties this case is being decided at this stage itself. The petitioner has challenged the legality of the transfer order dated 24.06.2021 passed by respondent No. 2 whereby the petitioner has been transferred from District Dehradun to District Bageshwar on a promotional post. Ms. Prabha Naithani the learned counsel for the petitioner submits that the petitioner is suffering from backache problems. This is abundantly clear from the report of the Kailash Hospital which clearly indicates that the petitioner has mild straightening of lumbar spine. There are degenerative changes in the form of marginal osteophytes disc desiccation and modic type II endplate changes at multiple levels of lumbar spine. There is also diffuse disc bulge seen at L4 L5 causing mild narrowing of thecal sacand significant narrowing of bilateral neural foraminas. Due to these medical difficulties being suffered by the petitioner the petitioner continues to suffer both pain and inability to walk in a normal proper gait. Moreover according to the medical certificate issued by the Government Doon Medical College Hospital Dehradun dated 13.07.2021 presently the petitioner is suffering “Bronchial Asthama”. Therefore he has been advised for bed rest till 25th July 2021. The learned counsel further submits that in order to highlight the medical difficulties being faced and in order to highlight that he has already completed 58 years and that he will have difficulty in discharging his duties at Bageshwar the petitioner has submitted a representation dated 01.07.2021. However despite the lapse of almost twenty days the said representation has not been considered. Therefore she prays that the respondents be the petitioner’s sympathetically and to ensure that he is posted at a place where it will be easy for him to seek the medical facilities for his spinal problem. On the other hand Mr. Vikas Pandey the learned Standing Counsel for the State of Uttarakhand informs this Court that the respondents will consider the petitioner’s representation within a period of one week. Therefore this Court directs respondent No. 3 to consider the petitioner’s representation dated 01.07.2021 in a sympathetic manner considering the spinal problems being suffered by the petitioner. Till the representation of the petitioner is decided the petitioner shall not be transferred to District Bageshwar. With these directions the petition stands disposed In sequel thereto pending application if any also stands disposed of. No order as to costs. of. RAGHVENDRA SINGH CHAUHAN C.J.) ALOK KUMAR VERMA J.) Dated: 22nd July 2021 |
Results denied to the petitioners, must be declared immediately: Bombay High Court | Petitioners who are holders of MBBS degrees, must be made aware of their results, so that they may either pursue studies or practice medicine or appear for re-examination, held, S.C. GUPTE AND SURENDRA P. TAVADE, JJ; while adjudicating the matter in Anita Kishanrao Videkar v. UOI; [WRIT PETITION NO.5343 OF 2018]. The Petitioners in these petitions are all holders of MBBS Degree from different medical colleges. After obtaining such degree, they proceeded to undertake and complete post graduate diploma courses in medicine or surgery, as the case may be, conducted by College of Physicians and Surgeons, Bombay. These diploma courses, conducted by the College of Physicians and Surgeons, have since long been recognized as intermediate post graduate qualifications. A pre-constitution law, Indian Medical Degrees Act, 1916, which had the assent of Governor General of India on 16 March 2016, recognized diplomas awarded by the College of Physicians and Surgeons as a recognized qualification, along with three other categories of organizations/colleges, for prosecuting Western Medical Science including Allopathic Medicine. By a stroke of luck, the specifics of which we need not go into for the purpose of these petitions, suddenly by a Notification issued on 2 December 2009 by the Union Government, various post graduate diploma courses conducted by the College of Physicians and Surgeons came to be de-recognized. This state of affairs continued till about 17 December 2017. By a Notification dated 17 January 2017, issued by Union Government, after consulting Medical Council of India, recognition of individual post graduate diploma courses conducted by the College of Physicians and Surgeons came to be restored through an amendment to the First Schedule of Medical Council of India Act. Various individual diplomas granted by the College of Physicians and Surgeons, ever since December 2009, came to be included once again as recognized medical qualifications. The individual Petitioners before us had, on the basis of diplomas held by them through College of Physicians and Surgeons, applied for admission to Secondary DNB course, which is a post graduate course of two years and which requires as a qualifying condition for admission holding of a recognised post graduate diploma. Based on the recognition granted by Notification of 17 January 2017, the Petitioners were considered eligible for appearing at a Common Entrance Test (“CET”) for admission to Secondary DNB course. Even their results at CET were declared accordingly. So far so good. Subsequent to their having cleared CET, Union of India proceeded to issue yet another notification, Notification dated 22 January 2018 (Gazetted on 12 February 2018), once again derecognising the diplomas awarded by the College of Physicians and Surgeons. As a result of this last Notification, Respondent No.3-Board refused to permit the Petitioners to undertake the Secondary DNB course any further. This led to the Petitioners filing the present group of petitions. | on 01 07 2021 on 22 03 Chittewan1 107&8 wp5343 18and orsNO.14966 OF 2018WITHINTERIM APPLICATIONNO.97590 OF 2021 Dr. Sayali Shankar Tidke ...Petitioner Versus Union of India throughSecretary And Others...RespondentsALONG WITHWRIT PETITION NO.4953 OF 2018 WITHINTERIM APPLICATION NO.80 OF 2021 Nupur Kunwarsingh Bhagat ...Petitioner Versus Union of India throughSecretary Ministry of HealthAnd Others ...RespondentsALONG WITHWRIT PETITION NO.5344 OF 2018WITHINTERIM APPLICATION NO.78 OF 2021 Keyur Raghuvendra Chakurwar...Petitioner Versus Union of India through itsSecretary And Others ...RespondentsALONG WITHWRIT PETITION NO.4758 OF 2018WITHINTERIM APPLICATION NO.73 OF 2021 Dr. Prashant Narsingarao Biradar ...Petitioner Versus Union of India throughSecretary Ministry of HealthAnd Others ...RespondentsALONG WITH on 01 07 2021 on 22 03 Chittewan3 107&8 wp5343 18and orsNO.12772 OF 2018WITHINTERIM APPLICATIONNO.97692 OF 2020 Nupur Kunwarsingh Bhagar...Petitioner Versus Union of India Through its Secretary Ministry of Health & Ors. ...RespondentsALONG WITHWRIT PETITION NO.4953 OF 2018WITHINTERIM APPLICATION NO.80 OF 2021 on 01 07 2021 on 22 03 Chittewan4 107&8 wp5343 18and orsNO.12473 OF 2018WITHINTERIM APPLICATIONNO.98318 OF 2020 Dr.Mohd. Zahir Siddiqui...Petitioner Versus Union of India Through its Secretary Ministry of Health & Ors....Respondents ….Mr. V.M. Thorat for the Petitioners.Mr. Rui Rodrigues a w. Mr. Akash Kotecha for Respondent No.1 Union ofIndia. Mr. Narayan Sahu a w. Dnyaneshwar Jadhav a w Saloni Vyas i b.Legasis Partners for College of Physicians and Surgeons.Mr. Abhishek Deshmukh a w Mr. Sanjiv Sawant for the Applicant inInterim Application No.3421.Smt. S.S. Bhende AGP and Smt. P.N. Diwan AGP for the State.Mr. Ganesh Gole for Respondent Nos.2 and 3. …. CORAM : S.C. GUPTE AND SURENDRA P. TAVADE JJ. DATE : 24 FEBRUARY 2021Oral Judgement :in holding that the Petitioners were not eligible topursue Secondary Diplomate of National Boardcourse on thebasis of qualifying diploma courses completed by the Petitioners. 2.The Petitioners in these petitions are all holders of MBBSDegree from different medical colleges. After obtaining such degree theyproceeded to undertake and complete post graduate diploma courses inmedicine or surgery as the case may be conducted by College ofPhysicians and Surgeons Bombay. These diploma courses conducted bythe College of Physicians and Surgeons have since long been recognizedas intermediate post graduate qualifications. A pre constitution law Indian Medical Degrees Act 1916 which had the assent of GovernorGeneral of India on 16 March 2016 recognized diplomas awarded by theCollege of Physicians and Surgeons as a recognized qualification alongwith three other catagories of organizations colleges for prosecutingWestern Medical Science including Allopathic Medicine. By a stroke ofluck the specifics of which we need not go into for the purpose of thesepetitions suddenly by a Notification issued on 2 December 2009 by theUnion Government various post graduate diploma courses conducted bythe College of Physicians and Surgeons came to be de recognized. Thisstate of affairs continued till about 17 December 2017. By a Notificationdated 17 January 2017 issued by Union Government after consultingMedical Council of India recognition of individual post graduate diplomacourses conducted by the College of Physicians and Surgeons came to berestored through an amendment to the First Schedule of Medical Councilof India Act. Various individual diplomas granted by the College ofPhysicians and Surgeons ever since December 2009 came to be included on 01 07 2021 on 22 03 Chittewan6 107&8 wp5343 18and orsfor admission toSecondary DNB course. Even their results at CET were declaredaccordingly. So far so good. Subsequent to their having cleared CET Union of India proceeded to issue yet another notification Notificationdated 22 January 2018once again de recognising the diplomas awarded by the College of Physicians andSurgeons. As a result of this last Notification Respondent No.3 Boardrefused to permit the Petitioners to undertake the Secondary DNB courseany further. This led to the Petitioners filing the present group ofpetitions.3.By a recent order passed on 10 April 2018 a Division Benchof this court directed the Respondents to permit the Petitioners to goahead with the Secondary DNB course as per the original Notificationdated 17 October 2017. No doubt the Division Bench made it clear thatthe fate of the course undertaken by the Petitioners would be subject tothe results of the petitions. The Petitioners in any event went ahead andparticipated in the course some of them having already completed thecourse and even procured Secondary DNB qualification based on their on 01 07 2021 on 22 03 Chittewan7 107&8 wp5343 18and ors2 Supreme Court Cases 445 on 01 07 2021 on 22 03 Chittewan9 107&8 wp5343 18and ors (stm).doc recognized. The Supreme Court held that since when the petitionerswere admitted to the course it had the requisite recognition it would beunjust for them to be told that their course had lost recognition. The factsof our case stand on an even better footing inasmuch as in our case weare not concerned with the recognition to the course now undertaken bythe Petitioners we are concerned with their eligibility qualification toundertake the course. As we have noted above they did meet theeligibility criteria when they appeared for CET for undergoing the presentcourse. Not only that but they were duly declared as meritoriouscandidates and admitted to the course and have proceeded to evencomplete the course. It would be all the more unjust in such a case forthe present Petitioners to be told that despite successful pursuit of thewhole course even with its successful completion in many cases thewhole exercise would be brought to a naught because the Governmenthas shifted its stand on the eligibility criteria midway. We are afraid thatwould be clearly impermissible. 7.Accordingly we make Rule absolute absolute and allow allthese petitions. Respondent No.3 Board is directed to hold and treat thePetitioners as individually eligible to pursue Secondary DNB course on thebasis of qualifying diplomas held by them from the College of Physiciansand Surgeons of Bombay. The individual qualifications of Secondary DNBcourse held by the individual Petitioners are accordingly entitled to betreated as qualifications duly obtained. Such of the Petitioners whoseresults have been withheld shall be entitled for declaration of theirindividual results and be allowed to prosecute either further studies orpractice medicine on that basis. Those of the Petitioners who have for on 01 07 2021 on 22 03 Chittewan10 107&8 wp5343 18and ors (stm).doc any reason failed in their Secondary DNB examination shall be entitledto reappear at the examination and declaration of their results at such re examination. Since appearance at the practical examiantion of those ofthe Petitioners who have given theory papers of Secondary DNB course depends on their results at the theory papers they would be entitled toappear for their practical examination accordingly. Respondent No.3 toforthwith declare the theory results of those candidates. 8.All the petitions are disposed in the above terms.9.In view of disposal of the petitions the respective InterimApplications taken out in the respective petitions do not survive and arealso disposed of. (SURENDRA P. TAVADE J)(S.C. GUPTE J.)1 |
Having a Valid Driving License for LMV (Motorcycle and Car) is a must for candidates applying for the post of Sub Inspector in Delhi Police: Delhi High Court | A person applying to the post of Sub-inspector in Delhi Police shall not apply unless he has a Light Motor Vehicle (LMV) license qua a motorcycle because the eligibility criteria mandate the same and secures posts only to those with the aforementioned license as is decided in the case of Shri Arvind Kumar v. Staff Selection Commission & Another delivered by Hon’ble Mr. Justice Rajiv Shakdher & Hon’ble Mr. Justice Talwant Singh on December 16, 2021. The brief facts of the case are that the petitioner had applied for the post of Sub-Inspector qua which an advertisement was taken out, on 03.03.2018 [in short “2018 advertisement”]. The said advertisement was concerned with the recruitment of Sub-Inspectors in Delhi Police and Central Armed Police Forces (CAPFs), which included, inter alia, Sashastra Seema Bal (SSB), and Assistant Sub-Inspectors in Central Industrial Security Force (CISF). The petitioner qualified the stipulated examination(s) and secured for himself 88th rank. The counsel for the petitioner contends that although the petitioner has obtained a job in SSB, the grievance of the petitioner is that, he was not given the appointment in Delhi Police, which was his first preference. Hence, the petitioner filed this writ petition against the order dated 13.07.2021, passed by the Central Administrative Tribunal in O.A. No.1285/2021. The counsel for the respondent contends that as per the 2018 advertisement, separate license is required for a motorcycle and a LMV license for a car would not take within its ambit a motorcycle. Also, Section 10 of the Motor Vehicles Act, 1988 [in short, “MV Act, 1988”] reads that: “10. Form and contents of licences to drive.—(1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:— (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description.” The counsel for the respondent also contends that by way of the present writ petition, the petitioner seeks to get the job of Sub-Inspector in Delhi Police, which is completely against the rules and further states that the present writ petition is not maintainable. The Court after listening both the parties had ruled that a perusal of sub-section (2) of Section 10 of the M.V. Act, 1988 would show that licenses are issued for various classes. As a matter of fact, even for motorcycle, there are two separate classes i.e., motorcycle without gear or motorcycle with gear. Clearly, other vehicles are separately set out in sub-section (2) of Section 10 of the M.V. Act, 1988. Concededly, on the cut-off date i.e., 09.09.2019, the petitioner neither possessed a Light Motor Vehicle (LMV) license qua a motorcycle nor was unable to obtain a license for motorcycle, which was a requirement under the advertisement issued for the subject post i.e., post of Sub-inspector available with the Delhi Police. The Court upheld the order passed by the Central Administrative Tribunal and thereby, the writ petition was disposed of in favour of the respondent. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 16.12.2021 W.P.(C) 13736 2021 SHRI ARVIND KUMAR Through Mr Mr Ghanshyam Jha Advs. and STAFF SELECTION COMMISSION & ANR. Through Mr Abhishek Singh Adv. for R 1. Mrs Avnish Ahlawat Standing Counsel with Mrs. Tania Ahlawat Mr Nitesh Kumar Singh and Ms. Palak Rohmetra Advs. for R 2. HON BLE MR JUSTICE RAJIV SHAKDHER HON BLE MR JUSTICE TALWANT SINGH Physical Hearing Hybrid HearingRAJIV SHAKDHER J.in O.A. No.1285 2021. The petitioner had applied for the post of Sub Inspector qua which an advertisement was taken out on 03.03.2018which included inter alia Sashastra Seema Bal and Assistant Sub Inspectors in Central Industrial Security Forceand secured for himself 88th rank. 2.2. Although the petitioner has obtained a job in SSB the grievance of W.P.(C)13736 2021 the petitioner is that he was not given the appointment in Delhi Police which was his first preference. What has come in the way of the petitioner is that he did not possess a Light Motor Vehicle license qua a motorcycle which was the requirement for subject post as per the 2018 advertisement. The relevant paragraph of the said advertisement is extracted “5. EDUCATIONAL QUALIFICATIONS AS ON 01.08.2018 Educational Qualification for all posts is Bachelor’s degree from a recognized university or equivalent. Note I: For the post of Sub Inspector in Delhi Police only: Male candidates must possess a valid Driving License for LMVon the date fixed for Physical Endurance and Measurement Tests. However the candidates who do not have a Valid Driving License for LMVare eligible for all other posts in CAPFs.” On the previous date i.e. 03.12.2021 we had asked Mr Abhishek Singh who appears on behalf of respondent no.1 as well as Mrs Avnish Ahlawat who appears on behalf of respondent no.2 to ascertain as to whether the license obtained for LMV would include a car as well as a motorcycle. 3.1. Mrs Ahlawat has returned with instructions. Mrs Ahlawat says that as per the 2018 advertisement separate license is required for a motorcycle. According to her a LMV license for a car would not take within its ambit a motorcycle. 3.2. Mr Abhishek Singh submits likewise. To emphasise this point our attention has also been drawn to Section 10 of the Motor Vehicles Act 1988which reads as follows: “10. Form and contents of licences to drive.—(1) Every learner’s licence and driving licence except a driving licence W.P.(C)13736 2021 issued under section 18 shall be in such form and shall contain such information as may be prescribed by the Central Government. 2) A learner’s licence or as the case may be driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes namely:— a) motor cycle without gear b) motor cycle with gear c) invalid carriage d) light motor vehicle e) transport vehicle ] i) road roller j) motor vehicle of a specified description.” A perusal of sub section of Section 10 of the M.V. Act 1988 would show that licenses are issued for various classes. As a matter of fact even for motorcycle there are two separate classes i.e. motorcycle without gear or motorcycle with gear. Clearly other vehicles are separately set out in sub sectionof Section 10 of the M.V. Act 1988. 4.2. Concededly on the cut off date i.e. 09.09.2019 the petitioner was unable to obtain a license for motorcycle which was a requirement under the advertisement issued for the subject post i.e. post of Sub inspector available with the Delhi Police. Given this position we are of the view that we cannot persuade ourselves to interfere with the impugned order. The writ petition is accordingly closed. RAJIV SHAKDHER J DECEMBER 16 2021 pmc Click here to check corrigendum if any TALWANT SINGH J W.P.(C)13736 2021 |
Proximity or live link between cruelty or harassment and the death of the deceased is the most essential element to be met in the case of 304B IPC, 1860: Allahabad High Court | In the absence of evidence on the point that soon before her death the deceased was subjected to cruelty or harassment for or in connection with the demand of dowry, no presumption could be raised under section 113B Indian Evidence Act, 1872. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble justice Ajai Tyagi in the matter of Roomali & ors vs the State of U.P[CRIMINAL APPEAL No. – 5444 of 2018].
The fact of the case revolved around the mysterious disappearance and murder of the complainant’s married daughter. It was the contention of the complainant that she was murdered by her in-law in regard to the non-fulfillment of dowry.
The Hon’ble High Court observed that no witness produced by the prosecution from PW1 to PW2 has mentioned a single word about dowry demand or harassment due to dowry demand before the death of the deceased. Hence, there is the live link or proximity to the death of the deceased. Further, the Hon’ble High court also stated that “But, trial court has written “उस दिन भी उसे हेज़ के लिलए उत्पीड़न दिकया गया तथा गला बाकर हत्या कर ी गयी”. It is not known from where the learned trial court has written the words ‘उस दिन भी’ because these three words have not been uttered even by PW1, PW2, PW3 or PW4, therefore, the trial court has not appreciated the evidence of the above witnesses in the right perspective and this finding that on the same day of the death she was subjected to cruelty is perverse”
Finally, the Hon’ble High Court allowed the appeal and set aside the order of the learned trial court.
Click Here To Read The Judgment.
Judgment reviewed by: Rohan Kumar Thakur
The fact of the case revolved around the mysterious disappearance and murder of the complainant’s married daughter. It was the contention of the complainant that she was murdered by her in-law in regard to the non-fulfillment of dowry.
The Hon’ble High Court observed that no witness produced by the prosecution from PW1 to PW2 has mentioned a single word about dowry demand or harassment due to dowry demand before the death of the deceased. Hence, there is the live link or proximity to the death of the deceased. Further, the Hon’ble High court also stated that “But, trial court has written “उस दिन भी उसे हेज़ के लिलए उत्पीड़न दिकया गया तथा गला बाकर हत्या कर ी गयी”. It is not known from where the learned trial court has written the words ‘उस दिन भी’ because these three words have not been uttered even by PW1, PW2, PW3 or PW4, therefore, the trial court has not appreciated the evidence of the above witnesses in the right perspective and this finding that on the same day of the death she was subjected to cruelty is perverse”
Finally, the Hon’ble High Court allowed the appeal and set aside the order of the learned trial court.
Click Here To Read The Judgment.
Judgment reviewed by: Rohan Kumar Thakur
The Hon’ble High Court observed that no witness produced by the prosecution from PW1 to PW2 has mentioned a single word about dowry demand or harassment due to dowry demand before the death of the deceased. Hence, there is the live link or proximity to the death of the deceased. Further, the Hon’ble High court also stated that “But, trial court has written “उस दिन भी उसे हेज़ के लिलए उत्पीड़न दिकया गया तथा गला बाकर हत्या कर ी गयी”. It is not known from where the learned trial court has written the words ‘उस दिन भी’ because these three words have not been uttered even by PW1, PW2, PW3 or PW4, therefore, the trial court has not appreciated the evidence of the above witnesses in the right perspective and this finding that on the same day of the death she was subjected to cruelty is perverse”
Finally, the Hon’ble High Court allowed the appeal and set aside the order of the learned trial court. | Case : CRIMINAL APPEAL No. 54418 Appellant : Roomali And 3 Others Respondent : State of U.P Counsel for Appellant : Brijesh Pratap Mishra Sriram Dhar Counsel for Respondent : G.A Hon ble Ajai Tyagi J This appeal has been preferred against the judgement and order dated 20.08.2018 passed by 11th Additional Sessions Judge Budaun in Session Trial No.5912 arising out of Case Crime No.1712under Sections 498A 304B 201 IPC and under Section 3 4 Dowry Prohibition Act 1961 Police Station Sahswan District Budaun in which appellants Satya Ram Smt. Roomali Smt. Rekha and Smt. Rajwala were convicted and sentenced under Section 304B IPC for ten years R.I. under Section 498A for two years and fine of Rs.2 000 under Section 201 IPC for two years and fine of Rs.2 000 and under Section 4 Dowry Prohibition Act 1961 for one year along with fine of Rs.1 000 The brief facts giving rise to this appeal are that Rohan the complainant and father of the deceased submitted a written report at Police Station Sahswan on 17.02.2012 with the allegations that her daughter Amlesh was married with Devendra r o village Dhobai. He has given sufficient dowry according to his financial capacity but husband and in laws of Amlesh were not satisfied with that and after sometime of marriage her husband Devendra father in law Satya Ram mother in law Nanad Rekha and Jethani started torturing her by abusing and beating her for non fulfilment of demand of additional dowry They were demanding a buffalo Rs.50 000 cash and jewellery in the form of gold chain and earrings etc. When complainant’s daughter remained unable to meet out the demand they turned out her of the home. Complainant contacted her in laws and tried to make them understand and promised to meet out their demand as and when he will be able to do it. Accused persons became quiet for sometime but after sometime they started torturing his daughter again and yesterday night of 16 17.02.2012 all the above mentioned accused persons along with Rajeev and Rama of their village murdered his daughter for non fulfilment of demand of additional dowry and disappeared her dead body Laturi of village Dhobai gave this information to him on phone in the morning. On getting this information he went to the matrimonial home of his daughter but neither his daughter nor her in laws were found there On this written report the first information report was registered at P.S. Sahswan District Budaun against Devendra Satya Ram mother in law of the deceased Rekha Jethani of the deceased Rajeev and Rama under Sections 498A 304B and 201 IPC and 3 4 Dowry Prohibition Act 1961 After registering of the case as above on 21.02.2012 i.e. after four days of first information report another report Ex.Ka 2 was submitted by the complainant at the same police station stating that he had lodged first information report regarding death and destruction of the evidence regarding the murder of his daughter on 17.02.2012. Thereafter he along with his family members started searching for his daughter and on 21.02.2012 the dead body of his daughter was found buried in a pit at the bank of river Mahawa in the jungle of village Rasoolpur Danse Police went to the spot as told by the complainant in his report dated 21.02.2012 and recovered the dead body of the deceased from there which was kept in a jute bag and was buried five feet below the earth. Recovery memo Ex.Ka 3 was After investigation charge sheet was submitted against offenders Smt. Roomali Smt. Rajvala Smt. Rekha Rajeev Smt Rama under Sections 498A 304B and 201 IPC and 3 4 Dowry Prohibition Act 1961. Learned trial court framed charges against the accused persons under Section 3 4 Dowry Prohibition Act 1961 and under Section 498A 304B and 201 IPC Offender the husband of deceased was declared juvenile and his case was sent to other concerned court for trial. It is told by learned counsel for the appellants that his trial is still pending in the court The trial of the rest of all the accused persons proceeded and accused appellants Satya Ram Smt. Roomali Smt. Rekha and Smt. Rajvala were convicted and sentenced under Section 304B 498A and 201 IPC and Section 4 Dowry Prohibition Act as stated above. Accused Rajeev and Smt. Rama were acquitted Aggrieved with the judgement of the trial court the appellants have preferred this appeal Heard Shri Brijesh Pratap Mishra learned counsel for the appellants and Shri S.S. Sachan learned AGA as well as perused Learned counsel for the appellants submitted that appellants Smt. Roomali is mother in law Smt. Rajvala is Jethani Smt. Rekha is married Nanad and Satya Ram is father in law of the deceased. The first argument advanced by learned counsel for the appellants is that prosecution has failed to prove that the death of the deceased took place within seven years of her marriage. In the first information report no date of marriage is mentioned nor it is written by the complainant when the marriage of deceased and appellant Devendra was solemnized. It is also submitted that investigating officer PW5 has stated in his cross examination that he did not secure any marriage invitation card or Pili Chithi etc from the complainant and he has not recorded the statements of Pandit or Naai who were engaged in the marriage of the deceased. Therefore there is no evidence on record which can show that deceased died within seven years of her marriage. It is next submitted by the learned counsel for the appellants that there is no evidence at all on the file that “soon before her death” the deceased was subjected to cruelty or harassment in connection with demand of dowry which is the main ingredient for bringing the case within the four corners of “dowry death”. Learned counsel for the appellants said that PW1 Rohan is father of the deceased PW2 Gajram and PW3 Bhoorey are uncle of the deceased and PW4 Shanti Devi is sister of the deceased. Nobody has said in their respective statements when before the death of the deceased she was subjected to cruelty or harassment regarding the demand of dowry Prosecution evidence is silent on this point. Hence there cannot be any presumption of Section 113B of Indian Evidence Act and no case is made out against the appellants under Section 304B of Learned counsel for the appellants very emphatically argued that the death of the deceased did not occur in her matrimonial home rather it took place in her parental home Learned counsel submitted that the complainant the father of the deceased himself committed murder of the deceased and destroyed the evidence by burying the body of the deceased five feet below the earth because the deceased was licentious and she was having bad character due to which complainant committed her murder. In this regard learned counsel for the appellants submitted that in the first information report it is said that some Laturi of village Daboi informed the complainant in the morning on phone regarding the death of the deceased but that Laturi is not produced before the trial court. If he would have been produced then defence could have opportunity to cross examine him as to how he came to know about the death of the deceased Since the said witness had not been produced and important link evidence is missing. Learned counsel for the appellants argued that after four days of the FIR the complainant moved an application in Police Station Swarana District Badaun on 21.2.2012 stating that when he was searching the dead body of his daughter along with his family members dead body of his daughter was found at the bank of the river Mohaba in the jungle of village Rasoolpur which was buried five feet below the earth But it is not explained by him as to how he came to know about the place where the dead body was found. It shows that death of the deceased took place in her parental house and not in the matrimonial home. It is very pertinent to note that the place where the dead body was found is very near to the village of the complainant and very far from village of appellants. Learned counsel for the appellants submitted that it has come in evidence of witnesses that they went to the spot from village on foot. It shows that place where the body was found is shown near to the village of the complainant that one can move there by foot. This fact proves that death had occurred in her parental house. Hence as per the provisions of Section 106 Indian Evidence Act the factum of death of the deceased was in special knowledge of the complainant and thereafter burden lies on him to show how the death of the deceased took place Learned counsel for the appellants referred the statements of witnesses and submitted that complainant PW1 Rohan has said in his statement that “मैंने खोजबीन करके अपनी लड़की की लाश ढूढ़ ली थी”. But he did not disclose the source of the information pointing out the place where the dead body of his daughter was buried under the earth. Therefore the evidence lacks credence and cannot be relied upon. PW2 Gajram has stated in his statement that the place from where we dug out the dead body was searched by us. It is also said by PW2 that he also went in search of the dead body along with his brother and he also dug the pit and before digging the police reached at the spot and body was unearthed in presence of the police. He has also stated that information regarding finding the dead body was already given to the police station before unearthing the dead body Learned counsel for the appellants has said that at the time of searching the dead body they found slippers of the deceased Learned counsel for the appellants said that those slippers were not produced before the trial court so as to ascertain whether it belonged to the deceased or not Learned counsel for the appellants argued that real fact was that the deceased was licentious and due to having bad character she was murdered by the complainant himself Therefore no case is made out against the appellants and they were wrongly convicted by the trial court. Hence the appeal be Learned AGA argued that it is well proved by prosecution witnesses that deceased died within seven years of her marriage She died after 11 months of her marriage. It is next submitted by the learned AGA that as far as the source of finding of the dead body is concerned it is in prosecution witness that by seeing slippers and loi complainant and his brothers came to know about the place. As per statement of PW8 Dr. Amit Kumar who conducted the post mortem of the dead body the death of the deceased was not a natural death rather she was killed by strangulation as her hyoid bone was found fractured therefore strangulation is there. Learned AGA also argued that no missing report of the deceased was lodged by the appellants’ side in any police station. Appellants were regularly demanding buffalo cash and jewellery as additional dowry and due to non fulfilment of their demand the appellants killed the deceased with the help of her husband and concealed the dead body under the earth. All the prosecution witnesses of fact have proved the demand of dowry death occurred within seven years of her marriage therefore the offence of the appellants falls within the purview of definition of Section 304B of IPC. Medical evidence also corroborates the prosecution case and hence the trial court has rightly convicted and sentenced the appellants. So appeal may be dismissed. First argument as advanced from the side of the appellants is regarding the time of the marriage of the deceased. It is argued from the side of the appellants that prosecution could not prove that death of the deceased took place within seven years of her marriage. Learned counsel for the appellants referred the contents of first information report and has submitted that no date of marriage is mentioned in the FIR and I.O. has not collected any evidence in the form of marriage invitation card or ‘Pili Chitti’ etc to know the date of marriage nor he has recorded the statements of Pandit or Naai who were engaged in solemnization of marriage but this Court is not convinced with the said argument of appellants. Although PW1 the father of the deceased has not disclosed the date or year of the marriage of the deceased but PW2 Gajram uncle of the deceased has stated in his statement that his elder brother Rohan’s daughter Amlesh was married with Devendra in the year 2011 in the month of “Vaishakh”. PW3 Bhoorey has also stated that marriage of deceased of Amlesh took place 11 months before her death. PW4 Santi Devi is the sister of the deceased she has also stated that the marriage of her elder sister took place five years before deposing the statement in the month of Vaishakh. Hence it is not disputed that the death of the deceased took place within seven years of her marriage 16. Question as to the place of death of the deceased is raised by the appellants by saying that the death of the deceased took place not in her matrimonial home but in the parental home Learned counsel for the appellants has shown some circumstances in this regard. It is submitted that as per FIR some Laturi informed the complainant about the death of his daughter Amlesh. I agree with the argument of learned counsel for the appellants that in the mysterious circumstances of death of the deceased Laturi was the key link who could depose that by whom or in what manner the death of the deceased was caused but such Laturi was not produced before the trial court Moreover the I.O. PW5 has stated in his statement that complainant had told him that a person named Laturi had given the information to him by telephone but such Laturi named person was not found by him 17. Dr. Anil Kumar PW8 who conducted the post mortem of the deceased has been produced before the trial court. He has proved the post mortem report as Ex.Ka 15. In the post mortem report her hyoid bone was found fractured and it cannot be disputed that deceased was killed because her dead body was found inside the jute bag five feet beneath the earth 18. No other argument was raised by the appellants’ counsel Appellants have given emphasis showing the circumstances of the death of the deceased. According to the learned counsel for the appellants circumstances of death of the deceased are very mysterious and point out towards the complainant that he himself killed her daughter Amlesh and buried her body five feet below the earth. But this case is not the case of Section 302 IPC but the appellants were put on trial before the trial court for the offences under Section 498A 304B and 201 IPC and Under Section 4 Dowry Prohibition Act as the charges were framed by learned 19. Analysing the evidence on record in the perspective of offence under Section 304B IPC to convict the accused under Section 340B IPC the prosecution has to establish the following the death of a woman should have been caused by burns or bodily injuries or otherwise than under normal circumstances ii) Such a death must have occurred within seven years of her iii) Soon before her death she must have been subjected to cruelty or harassment by her husband and her in laws or any relative of her husband demand of dowry iv) Such cruelty or harassment must be for or in connection with Section 113B of the Indian Evidence Act is also relevant for the case in hand which reads as under: “Section 113B Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with any demand for dowry the Court shall presume that such person had caused the dowry 21. As per definition of “dowry death” under Section 304B of IPC and the wordings under Section 113B of the Indian Evidence Act it is necessary to show that “soon before her death” the woman concerned had been subjected to cruelty or harassment for or in connection with the demand of dowry. On proof of the essential ingredients mentioned in Section 113B of Indian Evidence Act it becomes obligatory on the Court to raise a presumption that the accused had caused the dowry death In Balvinder Kaur Vs State of Punjab 2015(1) JIC 71it is held by the Hon’ble Apex Court that a combined reading of Section 113B of Indian Evidence Act with Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Thus the prosecution is obliged to show that soon before the occurrence of death there was cruelty or harassment and only in that case presumption under Section 113B of Indian Evidence In Kamesh Panjiyar @ Kamlesh Vs. State of Biharand held as under: “The expression ‘soon before’ is very relevant where Section 113B of Indian Evidence Act and Section 304B of IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution.” It is also held by the Hon’ble Apex Court in the above case that “soon before” is relative term and it would depend upon circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period of soon before the The same view was expressed in Thakkan Jha and other Vs. State of Bihar13 SCC 348 and Baldev Singh and others Vs. State of Punjab 2009JIC 120 (SC 26. Hence it is clear that to attract the provisions of Section 113B of Indian Evidence Act and Section 304B of IPC and to bring the death of a woman within the purview of ‘dowry death’ it is must for the prosecution to produce evidence regarding fact that “soon before her death” the woman was subjected to cruelty or harassment for or in connection with demand of dowry Proximity or live link between such cruelty or harassment and the death of deceased will depend upon the facts and circumstances of each case. It is very much relevant in the present case that no such evidence of cruelty or harassment soon before the death of the deceased is produced by the prosecution witnesses. There is no doubt that death of deceased Amlesh took place within seven years of her marriage and it was the death otherwise than under normal circumstances. But regarding the ingredient of “soon before death” this Court went through the evidence led by PW1 PW2 PW3 and PW4 who are witnesses of fact all these four witnesses have not uttered even a single word regarding the factum that before the death of the deceased when she was subjected to cruelty or harassment regarding the demand of additional dowry. Even first information report is silent on this point. PW1 Rohan has stated in his statement that after marriage whenever Amlesh came to his house she told him and his family members regarding the demand of additional dowry. This is not the live link or proximity to the death of the deceased. He has not stated even a single word in his statement when last time she was subjected to cruelty or harassment before her death. Same is the case with PW2 PW3 and PW4. They have also not uttered even a single word regarding the factum when deceased was subjected to cruelty or harassment last time before her death. Hence in absence of evidence on the point that soon before her death the deceased Amlesh was subjected to cruelty or harassment for or in connection with demand of dowry no presumption could be raised under Section 113B Indian Evidence Act. In this regard it is pertinent to add that trial court has written in its judgment that PW1 to PW4 have stated in their respective statements that after marriage accused persons were regularly demanding dowry from Smt. Amlesh and she was used to be harassed for non fulfilment of their demand. But trial court has written “उस दि(cid:28)न भी उसे (cid:28)हेज़ के लिलए उत्पीड़न दिकया गया तथा गला (cid:28)बाकर हत्या कर (cid:28)ी गयी”. It is not known from where the learned trial court has written the words उस दि(cid:28)न भी because these three words have not been uttered even by PW1 PW2 PW3 or PW4 therefore the trial court has not appreciated the evidence of the above witnesses in right perspective and this finding that on the same day of the death she was subjected to cruelty is perverse Prosecution witnesses PW1 to PW4 have altogether stated that soon after the marriage the appellants started demanding additional dowry and harassing her for non fulfilment of the demand and whenever she used to come to her parental house she used to tell this fact to her family members but it cannot be said to constitute a presumption or live link with her death Therefore the conviction of the appellants under Section 304B of IPC cannot be sustained. There is no such evidence on record that the dead body of the deceased Amlesh was concealed and buried under the earth by any of the appellants. There is no evidence against the appellants that they destroyed the evidence Hence their conviction under Section 201 IPC also cannot be sustained. As far as the demand of dowry and harassment in pursuant thereof is concerned a buffalo Rs.50 000 and jewellery is said to be demanded. The husband of the deceased is not appellant in this present appeal. Appellants are father in law mother in law Jethni and married Nanad of the deceased. The articles said to be demanded are not such for which present appellants can be direct beneficiaries. Moreover evidence on the above point is not credible if it is analysed in its entirety In view of the above discussions this Court is of the considered opinion that prosecution has failed to prove the charges framed against the appellants. Trial court has wrongly convicted the appellants and therefore appeal is liable to be 29. Accordingly the appeal is allowed. Conviction and sentence of appellants is hereby set aside and they are acquitted from all the charges levelled against them. Order Date : 21 10 2021 (Ajay Tyagi J |
In the absence of any patent illegality being pointed out, there is no scope for interference: High Court of J&K and Ladakh | When the parties to the contract have agreed that no proof would be required for payment of per diem allowance, the question of furnishing proof of deputation from one home office of the claimant to the two offices of the projects does not arise at all as held by the Hon’ble Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Tashi Rabstan in the case of J&K Economic Reconstruction Agency Vs Intercontinental Consultants Technocrats Pvt. Ltd. [AA No.37/2012]. The facts-in-short are that the petitioner-ERA and respondent-claimant entered into an agreement in respect of two contracts. As per the agreement, the fieldwork was to commence by the respondent-claimant not later than 31.01.2006 and was to be completed by 31.12.2009. However, somewhere in 2011 that the differences appear to have arisen between the parties regarding payment of per diem allowance to local support staff which the respondent-ERA disallowed from the invoices from the month of March, 2010 to December, 2011. Accordingly, a meeting under the Chairmanship of Chief Executive Officer was held on 01.08.2011 and it was decides that the dispute regarding payment of per diem allowance to local support staff be settled through arbitration and that the decision of arbitration shall be acceptable to both the parties. Accordingly, the parties participated in the arbitration proceedings, respondent-claimant filed the statement of claims and the petitioner-ERA countered the same. The learned arbitrators after completion of arbitration proceedings passed the award dated 20.09.2012 in favour of respondent-claimant and against the petitioner ERA. Against the said award, the petitioner-ERA has filed the present arbitration application seeking setting aside of the award. The Hon’ble court observed that the stand of petitioner-ERA was that per diem allowance becomes payable only when support staff goes out of home office at Delhi for rendering services at Jammu/Srinagar; therefore, the respondent-claimant had to show and furnish proof that the support staffs were actually deputed from its home office to the project offices of respondent-ERA for rendering services at Srinagar and Jammu; meaning thereby the petitioner-ERA has not denied that the support staffs from home office at Delhi have been rendering their services in the project offices of respondent-ERA at Srinagar and Jammu. The Hon’ble Court in conclusion stated that “So far as awarding interest @ 12% is concerned, the Apex Court in Punjab State Civil Supplies Corporation Limited vs Ganpati Rice Mills, SLP (C) No.36655/2016, decided on 20.10.2021, while observing that the High Court was not justified and correct in reducing the rate of interest to 9% per annum has held that Section 31(7) of the Arbitration Act, 1996 grants substantial discretion to the arbitrator in awarding interest. The learned Arbitrators have rightly appreciated the documents on record; terms and conditions of the contract in a perspective manner and provisions of the Arbitration and Conciliation Act. In the absence of any patent illegality being pointed out there is no scope for interference. There is no material on record to hold that by granting the claim as made, the award as passed was against the public policy of India.” | HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 28.10.2021 Pronounced on : 17.11.2021 AA No.37 2012 J&K Economic Reconstruction Agency Through: Mr. Aseem Sawhney AAG Intercontinental Consultants Technocrats Pvt. Ltd. Through: Mr. R.K. Gupta Sr. Advocate with Mr. Udhay Bhaskar and Mr. Ratish Mahajan HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE 1. This arbitration application filed by the J&K Economic Reconstruction Agency is directed against the award dated 20.09.2012 passed by the learned arbitrators whereby the learned arbitrators have awarded an amount of Rs.56 99 545 in favour of claimant respondent and against the petitioner ERA with a further direction to pay per diem in respect of pending invoices and claimed in future invoices during the currency of the contract period. It has also been directed to pay the award amount within a period of two months failing which the amount shall be payable with 12% interest from the date of 2. The facts in short as gathered from the file are that the petitioner ERA and respondent claimant entered into an agreement in respect of two contracts i.e. contract for design and supervision consultancy services for Srinagar 2 AA 37 2012 urban package and contract for design and supervision consultancy services for Jammu Transport Package of the contract agreement thus has committed patent illegality. It is pleaded that the payments made against invoices were in the nature of interim payments. Further it is pleaded that the respondent claimant had been claiming per diem payment for support staff though they were locals which was in gross violation 3 AA 37 2012 of the aforesaid clause. Thus it is pleaded that the arbitral Tribunal has fell in gross error by not considering Section 72 of J&K Contract Act which provides to repay or return the money paid by mistake. It is also pleaded that the upper limit of interest under J&K Arbitration and Conciliation Act is 6% thus awarding interest @ 12% is unenforceable. Lastly it is pleaded that the award is in conflict with the public policy of the State. In support of his arguments learned counsel for respondents has relied upon two judgments of the Apex Court i.e. Associate Builders vs DDA 3 SCC 49 and MMTC Ltd. Vs M s. Vedanta Ltd. 2019SCC 163. I have heard learned counsel appearing for the parties considered their respective contentions gone through the file as well as the award dated 20.09.2012 passed by the learned arbitrator as also the record of arbitration 5. A perusal of the application filed under Section 34 of the J&K Arbitration and Conciliation Act reveals that the petitioner ERA nowhere in the application has objected to the passing of award amounting to Rs.56 99 545 or that the amount awarded by the learned arbitrator is exorbitant except for rate of interest being on higher side meaning thereby the petitioner ERA has actually accepted the amount of award. 6. However a perusal of the instant application petition reveals that the main ground of challenge to the impugned award is that since the support staffs were locals as such were not entitled to be allowed per diem allowance. Therefore awarding of per diem allowance by the arbitral tribunal is required to be set 4 AA 37 2012 7. Now the question arises for consideration is: whether the arbitral tribunal was justified in allowing per diem allowance for the support staffs who as claimed by the petitioner ERA were locally employed. 8. The stand of petitioner ERA is that per diem allowance becomes payable only when support staff goes out of home office at Delhi for rendering services at Jammu Srinagar therefore the respondent claimant has to show and furnish proof that the support staffs were actually deputed from its home office to the project offices of respondent ERA for rendering services at Srinagar and Jammu in terms of Clause 6.03 meaning thereby the petitioner ERA has not denied that the support staffs from home office at Delhi have been rendering their services in the project offices of respondent ERA at Srinagar and Jammu. 9. Admittedly it is also not in dispute that the petitioner ERA had been regularly making payment of per diem allowance in respect of local support staffs for more than four years before it was disallowed from the month of March 2010 onwards. Further as per Note 1 to Exhibits C 9 and C 10 of Appendix C 2 payment of per diem has to be made without proof or receipt. This note came to be inserted by the parties after contract negotiations which reads as “per diem to be paid without any receipt of proof.” 10. Since in terms of the said note the parties to the contract have agreed that no proof would be required for payment of per diem allowance the question of furnishing proof of deputation from one home office of the claimant to the two offices of the projects does not arise at all. Further as per the record of arbitration proceedings the respondents have not questioned the genuineness of Note 1 to Exhibits C 9 and C 10 of Appendix C 2. 5 AA 37 2012 11. So far as awarding interest @ 12% is concerned the Apex Court in Punjab State Civil Supplies Corporation Limited vs Ganpati Rice Mills SLP C) No.36655 2016 decided on 20.10.2021 while observing that the High Court was not justified and correct in reducing the rate of interest to 9% per annum has held that Section 31(7) of the Arbitration Act 1996 grants substantial discretion to the arbitrator in awarding interest. 12. The learned Arbitrators have rightly appreciated the documents on record terms and conditions of the contract in a perspective manner and provisions of the Arbitration and Conciliation Act. In the absence of any patent illegality being pointed out there is no scope for interference. There is no material on record to hold that by granting the claim as made the award as passed was against the public policy of India. 13. Viewed thus I do not find any merit in the present application and the same is accordingly dismissed along with CM if any. 14. Registry to send back the record against proper receipt. Anil Sanhotra) Tashi Rabstan) Judge Whether the order is reportable Whether the order is speaking |
Indian law prescribes different processes for termination for misconduct and termination for unsatisfactory performance: High Court of Sikkim | The unsatisfactory performance involves an error of judgment, carelessness or mere negligence in performing a duty, while misconduct is more than an error of judgment. This construct generally applies to employees subject to the terms of the employment agreement, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. The matter Sunita Pradhan Versus State of Sikkim [ W.P. (C) No. 15 of 2021] dealt with an issue mentioned above. The petitioner was appointed on an ad-hoc basis on 04.06.2014 as the postgraduate teacher (commerce) on a temporary basis till the end of the academic session 2014. Thereafter, on 20.02.2015, 20.02.2016, 24.02.2017 the petitioner was reappointed on a temporary ad-hoc basis for fixed tenures, the last one for a period of six months from the date of her joining. Thereafter, the petitioner’s ad-hoc appointment was extended from 07.08.2017 till March 2018. The petitioner was then again temporarily engaged for two terms on an ad-hoc basis on 12.02.2018 and 20.02.2019. By a general order dated 14.12.2020 the term of employment for all ad-hoc teachers (which would also include the petitioner) appointed till the academic session of 2020 was extended till 31.03.2021. However, before her contractual service came to an end the respondents terminated her service. This was, as stated above, on the sole ground that her service performance was unsatisfactory. The ground for termination as above was disclosed by the respondents in the counter-affidavit. It was not reflected in the termination order. This statement was denied by the petitioner in her rejoinder, asserting that no such transfer order had been issued to her and she had, therefore, continued to work in the last place of posting till she was terminated. The respondents have not denied the assertion made by the petitioner in the rejoinder. The other grievance of the petitioner that she was treated unequally with those contractual employees whose terms had been extended, cannot be examined by this court in view of the fact that the petitioner had chosen not to make them parties in the present proceedings. The petitioner’s prayer for regularization and extension of the service beyond the contractual service period cannot be granted. The writ petition stands partially allowed to the above extent. The parties bear their respective costs. Click here to read the judgment Judgment reviewed by Sakshi Mishra | THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.No. 121 ….. Petitioner Ms. Sunita Pradhan D o Bal Krishna Pradhan R o Mandir Dara Goan Namchi South Sikkim. State of Sikkim Through Chief Secretary Government of Sikkim Gangtok East Sikkim. Education Department Through the Secretary Government of Sikkim Gangtok East Sikkim. ….. Respondents Writ Petition under Article 226 of the Constitution of India. Mr. Yam Kumar Subba Advocate for the Petitioner. Mr. Sudesh Joshi Additional Advocate General and Mr. Sujan Sunwar Assistant Government Advocate for the 08.03.2022 O R D E RBhaskar Raj Pradhan J. The writ petition seeks to assail the order of termination bearing O.O. No. 1484 Adm Edn dated 25.01.2021issued by the respondent W.P.No. 15 OF 2021 Sunita Pradhan vs. State of Sikkim & anr. no.2 terminating the petitioner’s contractual service on the sole ground of unsatisfactory performance. The petitioner also seeks regularization and extension of her contractual period and other incidental reliefs. The petitioner was appointed on ad hoc basis on 04.06.2014 as post graduate teacher commerce) on temporary basis till the end of the academic session 2014. Thereafter on 20.02.2015 20.02.2016 24.02.2017 the petitioner was reappointed on temporary ad hoc basis for fixed tenures the last one for a period of six months from the date of her joining. Thereafter the petitioner’s ad hoc appointment was extended on 07.08.2017 till March 2018. The petitioner was then again temporarily engaged for two terms on ad hoc basis on 12.02.2018 and 20.02.2019. By a general order dated 14.12.2020 the term of employment for all ad hoc teachersappointed till the academic session of 2020 was extended till 31.03.2021. However before her contractual service came to an end the respondents terminated her service. This was as stated above on the sole ground that her service performance was unsatisfactory. The petitioner has challenged this termination order on various grounds. W.P.No. 15 OF 2021 Sunita Pradhan vs. State of Sikkim & anr. 3. Heard Mr. Yam Kumar Subba learned counsel for the petitioner. It is his submission that the termination order also casts a stigma on her and hampers her career. It is submitted that the allegation that her performance was unsatisfactory was made without any basis. In fact records would reveal that her performance has been satisfactory. It is also submitted that several similarly placed contractually appointed teacher’s terms have been extended by the respondents and therefore the petitioner must also be treated equally. The learned Additional Advocate General however submits that the petitioner’s appointment was contractual and her service had to be terminated as she did not comply with the transfer order No.8 Edn Adm dated 03.07.2020 the transfer order). The ground for termination as above was disclosed by the respondents in the counter affidavit. It was not reflected in the termination order. This statement was denied by the petitioner in her rejoinder asserting that no such transfer order had been issued to her and she had therefore continued to work in the last place of posting till she was terminated. The respondents have not denied the assertion made by the petitioner in the rejoinder. The learned W.P.No. 15 OF 2021 Sunita Pradhan vs. State of Sikkim & anr. Additional Advocate General admits that the respondents have not filed any record to show that the petitioner was in fact served with the transfer order. This court has perused the pleadings and the records placed. On hearing the learned counsel for the parties this court is of the view that the assertion in the termination order that her services was unsatisfactory does not stand to is noticed the petitioner has been reappointed or her contractual service extended from 04.06.2014 till the date of her termination. There was no reason for the respondents to have done so if her service had been unsatisfactory. The learned Additional Advocate General submits that it was because of her failure to comply with the transfer order that the respondents deemed it to be unsatisfactory service. The respondents have however not placed any record to establish this fact. The service of the petitioner is a contractual service which would have ended on 31.03.2021. She was however terminated on 25.01.2021 itself before her term ended on the sole ground that her service was unsatisfactory. There is no proof that her service was unsatisfactorily or that she was served with the transfer order. Resultantly the termination order No.1484 Adm Edn dated W.P.No. 15 OF 2021 Sunita Pradhan vs. State of Sikkim & anr. 25.01.2021 is set aside. The respondents shall pay the petitioner her consolidated salary with all other benefits that would have accrued to her for the period from the last date of payment of consolidated salary till 31.03.2021 on which date her service would have come to an end. The other grievance of the petitioner that she was treated unequally with those contractual employees whose terms had been extended cannot be examined by this court in view of the fact that the petitioner had chosen not to make them parties in the present proceedings. The petitioner’s prayer for regularization and extension of the service beyond the contractual service period cannot be granted. The writ petition stands partially allowed to the above extent. The parties to bear their respective costs. All pending interim applications are accordingly disposed of. Judge Bhaskar Raj Pradhan ) Approved for reporting:Yes No :Yes No Internet |
The fate of a suit against encashment of bank guarantee still hangs in balance after almost two decades: The Supreme Court of India | It is trite to say that as a bank guarantee is an independent contact, there is a limited scope for interference in case of encashment of bank guarantee as enunciated by various courts including this Court from time to time. One of the reasons for interference could be egregious fraud. The fraud must be relatable to the bank guarantee. The aforesaid has been held by the Supreme Court of India in the case of Atlanta Infrastructure Ltd v. Delta Marine Company & Ors. [SLP (C) No. 14979 of 2020] which was decided by the single judge bench comprising Justice Sanjay Kishan Kaul on 19July 2021. The facts of the case are as follows. Respondent No.1, the original plaintiff, preferred an appeal before the learned Addl. District Judge, Khurda. On 18.11.2019, the appellate court passed an interim order restraining the release of payment of bank guarantee. Meanwhile, respondent No.1 moved an application under Order 41 Rule 27 of the CPC seeking admission of copy of the report of expert opinion dated 4.12.2019 under Section 45 of the Evidence Act. They sought to place on record some documents of the appellant with an objective of signature comparison. Such a request was rejected by the learned ADJ, Khurda vide order 18.02.2020. The aforesaid fact was brought to the notice of this court on 27.10.2020. Noticing the mockery made out of the proceedings, for stay of encashment of bank guarantee, a report was called. The aforesaid fact was brought to the notice of this court on 27.10.2020. Noticing the mockery made out of the proceedings, for stay of encashment of bank guarantee, a report was called. The application under Order 41 Rule 27 CPC preferred by the respondent was predicated on a reasoning that some interrogatory had been put to the appellant which would show that a fraud was sought to be played on the Court. | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2876 OF 2021 Arising out of SLPNo. 149720 ATLANTA INFRASTRUCTURE LTD RECHRISTENED AS ATLANTA LTD APPELLANT DELTA MARINE COMPANY & ORS JUDGMENT SANJAY KISHAN KAUL J Leave granted. Learned counsel for the respondent accepts notice Heard learned counsel for the parties The fate of a suit against encashment of bank guarantee still hangs in balance after almost two decades! It is only as a result of the push given by this court that the suit culminated in a dismissal order on 8.11.2019 Respondent No.1 the original plaintiff preferred an appeal before the learned Addl. District Judge Khurda. On 18.11.2019 the appellate court passed an interim order restraining the release of payment of bank guarantee which order was confirmed on 19.11.2020. On 6.1.2020 this court passed an order in SLP(C) No.6394 2017 directing disposal of the appeal within a period of three months from the next date i.e. 24.1.2020 Meanwhile respondent No.1 moved an application under Order 41 Rule 27 of the CPC seeking admission of copy of the report of expert opinion dated 4.12.2019 under Section 45 of the Evidence Act. They sought to place on record some documents of the appellant with an objective of signature comparison. Such a request was rejected by the learned ADJ Khurda vide order 18.02.2020. Respondent No.1 then filed an appeal CMP 285 2020 on 12.3.2020 against the said order and in terms of order dated 16.03.2020 notice was issued and further proceedings pending before learned ADJ were The aforesaid fact was brought to the notice of this court on 27.10.2020. Noticing the mockery made out of the proceedings for stay of encashment of bank guarantee a report was called. On 2.11.2020 the High Court vacated the stay observing that the order of this court dated 6.1.2020 was not brought to the knowledge of the High Court. In terms of the impugned judgment dated 4.11.2020 the order dated 18.2.2020 of learned ADJ was set aside and the matter was remitted back to learned ADJ to consider the application under Order 41 Rule 27 CPC afresh at the time of hearing of the appeal On conspectus of the arguments of learned counsel for the parties we find the impugned order unsustainable. The suit had been filed for a decree of permanent injunction restraining the appellant from encashment of bank guarantee and to the bank from making payment. A further prayer was also made for a decree of declaration of the agreement dated 16.2.2001 including the arbitration clause null and void and unenforceable. The application under Order 41 Rule 27 CPC preferred by the respondent was predicated on a reasoning that some interrogatory had been put to the appellant which would show that a fraud was sought to be played on the Court. And that is the reason the opinion of the handwriting expert was sought for comparison of signatures on admitted documents marked as exhibits with the signatures made on the reply to the interrogatories and the vakalatnama. The report had been received only on 4.12.2019. In our view the argument of the respondent No.1 is fallacious. It is trite to say that as a bank guarantee is an independent contact there is a limited scope for interference in case of encashment of bank guarantee as enunciated by various courts including this Court from time to time. One of the reason for interference could be egregious fraud. The fraud must be relatable to the bank guarantee. Learned counsel for the respondent No.1 admits that what he was trying to show is that the signatures of the officers of the appellant on documents do not match with the vakalatnama or some other documents which would in turn show that the appellants had been acting fraudulently in a different matter. However this has nothing to do with the issue relating to the signatures of the representatives of the appellant which they do not deny. We perceive this to be another endeavour on part of the respondent No.1 to unnecessarily keep prolonging the issue and somehow prevent encashment of the bank guarantee In view of the aforesaid we set aside the impugned order and dismiss the appeal filed by respondent No.1 before the High Court against the order of the first appellate court rejecting their application for production of additional documents. The appeal is accordingly allowed leaving the parties to bear their own costs [SANJAY KISHAN KAUL [HEMANT GUPTA JULY 19 2021 |
IntraCourt Mandamus appeal is usually warranted only when palpable infirmities or perversities are noticed: High Court Of Meghalaya | All the points which have been raised had been meticulously considered by the learned Single Judge and had been extensively dealt with in the impugned judgment and order. The Hon’ble High Court Of Meghalaya before The Hon’ble Chief Justice Mr. Justice Biswanath Somadder and The Hon’ble Mr. Justice W. Diengdoh held such an opinion regarding the case of Biolin Kurbah Vs. Hindustan Petroleum Corporation Ltd. & anr [WA No.11/2021]. The facts of the case were related to an impugned judgment and order dated 9th December 2019, passed by a learned Single Judge in WP (C) No.466 of 2018 (Smti. Biolin Kurbah v. Hindustan Petroleum Corporation Limited & anr) wherein the writ petition was dismissed. The appellant again filed a writ petition. It was stated that respondent no.1 Hindustan Petroleum Corporation Limited had advertised for the appointment of Regular/Rural Retail Outlet Dealerships, in East Khasi Hills District, Meghalaya, in the local dailies dated 5th November 2014. Following the advertisement, the petitioner submitted the required particulars. Correction in the documents was asked to be made by the petitioner. It was stated by the petitioner that even after the corrections were made and submitted, the application was rejected on the ground that the writ petitioner‟s candidature was not found to be eligible for allotment of the Dealership as the land offered did not meet the National Highway norms. The counsel representing the appellant emphasized on the submissions made by the learned judge and showed relevant documents including the letter of the Hindustan Petroleum Corporation Limited that addressed the appellant/writ petitioner and her reply. While the counsel for HPCL also showed the court the various documents where it was categorically informed to the writ petitioner about the letter where she mentioned the plot offered by her was not matching the frontage of the plot as given in her original application. The Hon’ble Court stated “… There is no doubt – in the fact of the instant case – that the appellant/writ petitioner, by her representation dated 21st January, 2017, was essentially seeking to redefine the original land dimensions and the same cannot come within the meaning of permitted rectification or an additional document. The learned Single Judge has even taken note of this fact, as also the fact that the appellant/writ petitioner, having participated in the evaluation conducted by a Land Evaluation Committee (LEC), had not raised any objection to its finding and as such it cannot be held that the concerned authority had acted unreasonably or arbitrarily in rejecting the application of the appellant/writ petitioner.” The Hon’ble High Court Of Meghalaya considering the submissions ruled out that “ we do not find any merit in the instant IntraCourt Mandamus appeal, which is liable to be dismissed and stands accordingly dismissed along with MC (WA) No.59 of 2021.” | Serial No.08 Regular List WA No.11 2021 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Order: 01.10.2021 Biolin Kurbah Vs. Hindustan Petroleum Corporation Ltd. & anr Hon’ble Mr. Justice Biswanath Somadder Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) Mr. K. Khan Sr.Adv For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. H.L. Shangreiso Sr.Adv with Ms. P. Biswakarma Adv for R 1 Mr. L. Lyngdoh Adv for R 2 ii) Whether approved for publication in press: JUDGMENT:(Oral) The instant writ appeal arises in respect of a judgment and order dated 9th December 2019 passed by a learned Single Judge in WP No.466 of 2018 on 5th November 2014 had put up an advertisement in the Local Dailies for appointment of Regular Rural Retail Outlet Dealerships in East Khasi Hills District Meghalaya. The writ petitioner accordingly had applied for the same and submitted the particulars which the respondents however found wanting and by letter dated 24th October 2016 the writ petitioner was requested to make some corrections in the documents which had been submitted earlier. The pleaded case of the writ petitioner is that even after submission of the corrected documents the respondent vide letter dated 12th January 2017 rejected the application of the writ petitioner on the ground that the writ petitioner‟s candidature was not found to be eligible for allotment of the Dealership as the land offered did not meet the National Highway norms. The writ petitioner thereafter against the said rejection had filed a representation on 21st January 2017 before the respondent No. 1 but the same was also rejected for reasons stated therein. Being aggrieved the writ petitioner assailed the impugned decision of the respondent No. 1 by filing a writ petition. A plain reading of the impugned judgment and order reveals that the learned Single Judge heard out the matter extensively after exchange of affidavits. After considering all aspects of the matter the learned Single Judge came to the following conclusion: “13. From the materials it is seen that the petitioner had preferred an appeal before the respondent No. 1 on 21.01.2017 and at Para 2 3 and 4 of the said appeal submitted that the plot had a frontage of 125 meter and distance of 17 meters from the 3.5 meters road from the edge of the frontage and projected therein that with the new permutation and combination of the measurements of the same location the same would come within the norms as stipulated by the Ministry of Road Transport and Highways. It is to be noted that this redefinition was not as per the submitted application wherein it was clearly stated that the frontage was 100 meters. The respondent No. 1 by letter dated 29.3.2017 rejected the said appeal for reconsideration citing the non compliance of Dealers Selection Guidelines 2014. 14. Another pertinent fact which is noted by this Court is the letter in which the petitioner has taken to be the foundation for her case which had allowed her to correct and file additional documents is dated 24.10.2016. The Land Evaluation Committee report dated 27.12.2016 which is subsequent to the said letter was based on an evaluation which was conducted in the presence of the petitioner and duly signed on that day itself by her which showed the frontage and size of land the same as had been submitted earlier in the application. The said report also indicated that the land was unsuitable as it did not meet the NHAI norms. The shifting stand of the petitioner therefore does not convince this Court as to the genuineness of her claim or that the respondent No. 1 arbitrarily rejected her application even after rectification. 15. As aforementioned the allotment of Retail Outlets is to be as per the stated guidelines coupled with the prescribed norms of NHAI. In the instant case firstly the contention of the petitioner that she had been allowed to submit additional documents with regard to the offered plot does not seem to be a valid ground inasmuch as the submission as far as it concerned the location was only limited to „the location name mentioned in the advocate‟s letter‟. The guidelines as given in Note „d‟ to Clause „L‟ has specifically stipulated that rectified or additional documents would be accepted only if they are pertaining to the information provided in the application form. The petitioner by her representation seeking to redefine the dimensions will not come within the meaning of the permitted rectification or an additional document. Further the petitioner having participated in the Evaluation conducted by the LEC and not having raised any objections as to the findings that too the same which was conducted on 27.12.2016 much after the letter dated 24.10.2016 had been communicated to the petitioner it cannot be held that the respondent No. 1 had acted unreasonably or arbitrarily in rejecting the petitioner‟s application. 16. The judgment so placed by learned counsel for the respondent No. 2 though more of persuasive value is relevant as the judgment was rendered in more or less similar facts in which the Bombay High Court had also taken into consideration the prescribed guidelines for allotment of Retail Outlets. 17. For the foregoing facts and circumstances there being no infirmity in the selection process this writ petition is accordingly 18. No order as to costs.” Before us the learned advocate representing the appellantessentially reiterated the submissions made before the learned Single Judge. He also took us through the relevant documents including the letter of the Hindustan Petroleum Corporation Limited HPCL) dated 12th January 2017 addressed to the appellant writ petitioner and her reply dated 21st January 2017. On the other hand the learned advocate representing HPCL has also taken us through various documents including HPCL‟s letter dated 29th March 2017 whereby the appellant writ petitioner was categorically informed regarding her letter dated 21st January 2017 wherein she had mentioned that the plot offered by her had a frontage of 125 meters which was not matching with the frontage of the plot as given in her original application sketch map as well as the lease deed. In the said letter dated 29th March 2017 the HPCL has further specifically stated as follows: “In this regard please note that no change in offered land dimension is Learned advocate representing HPCL has also taken us to the format of Land Evaluation conducted by a Land Evaluation Committee which had found the land to be not suitable. Learned advocate representing the HPCL has also referred to the typed copy of the original application signed by the appellant writ petitioner on 27th December 2016 which provides for the layout sketch of the land offered by her with the following declaration: “I hereby confirm that the above mentioned details of the plot offered by me are correct and site has been inspected by the Company Officials as mentioned below I also understand that in case any of the details mentioned above are found incorrect or the site is found unsuitable by the Corporation for any reason whatsoever then I would have no claim on the dealership of this location.” According to the learned advocate representing HPCL the letter written by the appellant writ petitioner dated 21st January 2017 tantamounts to effecting a change in the land dimension originally offered which is not permissible. After considering the respective submissions made by the learned advocates for the parties and upon perusing the impugned judgment and order passed by the learned Single Judge dated 9th December 2019 we are of the view that all the points which have been raised before us have been meticulously considered by the learned Single Judge and have been extensively dealt with in the impugned judgment and order. In an Intra Court Mandamus appeal interference is usually warranted only when palpable infirmities or perversities are noticed. On a plain reading of the impugned judgment and order we do not notice any such infirmity or perversity. Rather we find that the judgment and order is supported with cogent and justifiable reasons. There is no doubt in the fact of the instant case that the appellant writ petitioner by her representation dated 21st January 2017 was essentially seeking to redefine the original land dimensions and the same cannot come within the meaning of permitted rectification or an additional document. The learned Single Judge has even taken note of this fact as also the fact that the appellant writ petitioner having participated in the evaluation conducted by a Land Evaluation Committeehad not raised any objection to its finding and as such it cannot be held that the concerned authority had acted unreasonably or arbitrarily in rejecting the application of the appellant writ petitioner. For reason stated above we do not find any merit in the instant Intra Court Mandamus appeal which is liable to be dismissed and stands accordingly dismissed along with MCNo.521. W. Diengdoh) Judge Biswanath Somadder) Chief Justice “Lam DR PS” |
To prove abetment to suicide, there must be instigation, to commit suicide or intentionally aided the deceased to commit suicide: Odisha High Court | Instigation is to goad, urge forward, provoke, incite, or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. A single bench comprising of Justice S.K. PANIGRAHI adjudicating in the matter of Prof. Dr. Sanjiv Mittal vs. State of Odisha (ABLAPL No.6554 of 2021 )dealt with an issue of whether to grant pre-arrest bail to the Petitioner. In the present case, an application for Anticipatory Bail is filed against the SDJM Sambalpur. The petitioner was accused of offenses punishable under Section 306 read with Section 34 of the I.P.C. Prior to the present application, the petitioner approached the court of the learned Sessions Judge, Sambalpur seeking pre-arrest bail but such application was rejected. The deceased, Mr. Dinabandhu Mishrawas was serving as a Technical Assistant (Computer) on a contractual basis at Sambalpur University for about 27 years and was appointed by the VC of the Sambalpur Technical Assistant (Computer) on a contractual basis at Sambalpur University for about 27 years. On 20.04.2021 Mr. Dinabandhu Mishrawas wrote a letter to the Registrar of Sambalpur University where he stated that the Petitioner had called him 15.04.2021 to question him regarding leaking of some information to the press about the burning of cut wood. Further, the letter states that the petitioner had called upon the deceased on the unfortunate day of 20.04.2021 wherein the deceased claimed that the petitioner had used filthy language and made false allegations against him regarding the theft of some University property without any basis. He also stated that the behavior of the Vice-Chancellor is not tolerable to him and therefore he would commit suicide and upon his death, the petitioner, one Mr. Abinash Kar, and Prof. Biswajit Satpathy are to be held responsible. The petitioner submitted that the ingredients to constitute the said offenses are completely absent in the present case. He also contended that there is the complete absence of any sort of instigation or any positive move on the part of the petitioner causing the deceased to commit suicide. Although the incident is mournful and very unfortunate, the petitioner cannot be prosecuted for the offenses punishable under Sections 306 of the Indian Penal Code, 1860. Also it was contended that the deceased on an earlier occasion on 25.03.2014 had given the representation to Sri S.C. Jamir, the then Governor of Orissa, threatening for self-immolation if his service was not regularised immediately. Similar conduct was seen in the present case and hence it can be stated that he was totally in an unbalanced state of mind and he reminded about his repeated message describing his mental status through Whatsapp and threatened self-immolation. Thus, in the past, he had frequently threatened the authority to commit suicide which reflects his vulnerable state of mind and conduct in general. Hence their partition should be allowed. The Respondent vehemently opposed the bail application and induced the suicide letter/note itself states that the accused persons including the present petitioner used to create mental pressure on the deceased which has resulted in his committing suicide. According to the FIR and the investigation report of the Police, it was found that the accused persons are responsible for abetting the suicide of the deceased. It is clear from the plain reading of the Case Diary that the present case is not a prima facie exclusion of guilt case hence falls under the ambit of Section 306 of I.P.C. According to the set of events, the deceased was called upon the office of VC and had some discussions regarding the theft of some materials and was yelled at. The conduct of the VC was intimated to the Registrar but on the same date at about 10.30 AM he poured some inflammable liquid over his head and sets himself ablaze near the chamber of the VC. It was submitted that the rude behavior of the petitioner, his arbitrary attitude have clearly inflicted a deep scar on the psychology of the deceased which triggered him to take such a drastic step of self-immolation and died an excruciatingly painful death. In order to prove the charge of abetment, the accused must have instigated a person to do a thing, in this case, to commit suicide or intentionally aided the deceased to commit suicide. If one goes by the suicide note of the deceased, one would find that the deceased does not state how the appellant had instigated or intentionally aided him in committing suicide. | HIGH COURT OF ORISSA CUTTACK ABLAPL No.65521 In the matter of applications under Section 438 of the Criminal Procedure Code 1973) Prof. Dr. Sanjiv Mittal Petitioner Versus Opposite Parties State of Odisha & Others … For Petitioner For Opp. Parties : Mr. Manoj Kumar Mohanty Additional Standing Counsel M s. H.S. Mishra A.K. Mishra & R.DashM s. Kousik Ananda Guru & Tushar Kumar Mishra Advocates Mr. Srinivas Mohanty THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 17.06.2021 Date of judgment: 02.07.2021 S. K. Panigrahi J. 1. The present petitioner has filed the instant Anticipatory Bail application under Section 438 of Cr.P.C. corresponding to Burla P.S. Case No.251 of 2021 pending in the Court of the learned S.D.J.M Sambalpur. The petitioner herein has been accused in connection with alleged commission of offences punishable under Section 306 read with Section 34 of the I.P.C. Prior to the present Application the petitioner approached the court of the learned Sessions Judge Sambalpur in ABLAPL No.821 wherein vide 2 order dated 24.05.2021 the learned Sessions Judge rejected the said pre arrest bail petition. 2. Shorn of unnecessary details the facts of the present case are that the deceased one Mr. Dinabandhu Mishra was serving as a Technical Assistant on contractual basis at Sambalpur University for about 27 years. The petitioner herein was appointed as the Vice Chancellor of Sambalpur University on 25.01.2021 and has been discharging his duties and responsibility since then. On 20.04.2021 the deceased wrote a letter to Registrar Sambalpur University wherein he stated that the petitioner had called him on 15.04.2021 to question him regarding leaking of some information to the press about burning of cut wood. Further the letter states that the petitioner had called upon the deceased on the unfortunate day of 20.04.2021 wherein the deceased claimed that the petitioner had used filthy language and made false allegations against him regarding theft of some University property without any basis. The deceased also claimed that the behaviour of the Vice Chancellor is not tolerable to him and therefore he would commit suicide and upon his death the petitioner one Mr. Abinash Kar and Prof. Biswajit Satpathy are to be held responsible. 3. Learned counsel for the petitioner submitted that these facts and circumstances do not in any way indicate that the alleged act would constitute abetment to commit suicide. The ingredients to 3 constitute the said offences are completely absent in the present case. He also contended that there is complete absence of any sort of instigation or any positive move on the part of the petitioner causing the deceased to commit suicide. Although the incident is mournful and very unfortunate the petitioner cannot be prosecuted the offences punishable under Sections 306 of the Penal Code 1860. It was also submitted that the petitioner is absolutely innocent and has been falsely implicated in this case on the ground that he has abetted the suicide committed by the deceased. It is also argued that the ingredient of abetment as laid down in Section 107 is completely absent in this case and as such Section 306 of the Penal Code 1860 is not attracted. Lastly during the course of arguments learned Counsel for the Petitioner has also brought to the notice of this Court that the deceased on an earlier occasion on 25.03.2014 had given the representation to Sri S.C. Jamir the then Governor of Orissa threatening for self immolation if his service was not regularised immediately. Further on 7.09.2015 he sent a representation to the then Vice Chancellor of Sambalpur University stating therein that he wanted to end his life. In yet another letter dated 24.07.2018 addressed to the then Vice Chancellor Prof. Dipak Behera the deceased had categorically stated that he was totally in an unbalanced state of mind and he reminded about his repeated message describing his mental status 4 through Whatsapp and threatened self immolation. Thus in the past he had frequently threatened the authority to commit suicide which reflects his vulnerable state of mind and conduct in general. Hence the petitioner cannot be attributed to the alleged abatement of suicide. This Court should not be persuaded by the alarming and hyperbolic verbiage used in the media and by the informant. Accordingly the prayer for anticipatory bail may be allowed. 4. Per contra the learned counsel appearing for the State has vehemently opposed the anticipatory bail application and has submitted that investigation is ongoing and the suicide letter note itself states that the accused persons including the present petitioner used to create mental pressure on the deceased which has resulted in his committing suicide. The learned counsel for the State further contends that the contents of the First Information Report and the investigation conducted by the police so far sufficiently establishes that the accused persons are responsible for abetting suicide of the deceased. It is clear from the plain reading of the Case Diary that the present case is not a prima facie exclusion of guilt case hence falls under the ambit of Section 306 of I.P.C. 5. The learned Counsel appearing for the informant submitted that on the morning hour of 15.4.2021 the Vice Chancellor Petitioner herein called the deceased to his cabin and alleged that he had given information to the press regarding the huge burning of cut 5 wood as extracted from the small front of the administrative building which is false and baseless. Further on 20.04.2021 at about 9.10 AM the deceased was called to the chamber of the Vice Chancellor and said to have some discussions regarding theft of some materials from the Hostel and thereafter the petitioner angrily called him “Get out of my chamber.” After that at about 9.45 AM the deceased informed the matter in writing to the Registrar indicating his intention to commit suicide due to harsh language used by the VC and making false allegation against him. Unfortunately on the same date at about 10.30 AM he poured some inflammable liquid over his head and sets himself ablaze near the chamber of the VC. Some members of the University staff tried to douse the fire with the help of fire extinguisher and immediately took him to VIMSAR Burla for medical treatment and then VIMSAR Burla referred the case to SCB Medical College & Hospital Cuttack. On his way to Cuttack the deceased eventually breathed his last near Angul on 20.04.2021. He further submitted that the rude behaviour of the petitioner his arbitrary attitude has clearly inflicted a deep scar on the psychology of the deceased which triggered him to take such a drastic step of self immolation and died an excruciatingly painful death. Despite so much of subjective narrative created by the petitioner’s counsel the petitioner’s action 6 provoked a strong and shocking emotional response in terms of a unique violence against self which cannot be said to be in vacuum. 6. Heard learned Counsel for the parties in extenso and perused the case diary and other relevant records. The petitioner has been charged with Section 306 read with Section 34 of the I.P.C. Generally while considering an application for anticipatory bail the factors to be considered are the nature and gravity of the accusation the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence the possibility of the applicant to flee from justice where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested the character behaviour antecedents means position and standing of the accused in the society and reasonable apprehension of the witnesses being tampered with or the investigation being interfered 7. More than four decades ago in a celebrated judgment in State of Rajasthan v. Balchand1 Krishna Iyer J. pithily reminded that the basic rule of our criminal justice system is “bail not jail”. These words of Krishna Iyer J. are not isolated silos in our jurisprudence 1(1977) 4 SCC 308 7 but have been consistently followed in judgments of the Hon’ble Supreme Court of India for decades. 8. Under Section 438 the question which vexes the court seized of the matter is whether a person if arrested on an accusation of having committed a non bailable offence can be released on bail. The apprehension of such an arrest is possible only when the person is being sought for arrest by the police or other authority. At this juncture a person cannot move the Courts under Section 437 or under Section 439 because he is not in custody. But he can very well approach the High Court or the Court of Session under Section 438 for an appropriate order. The High Court or the Court of Session in its turn is competent to examine the case of the person and his suitability to be enlarged on bail after the arrest and then only an order under Section 438 is passed. 9. Section 438 of the Code makes a special provision for granting “anticipatory bail” in the Code of Criminal Procedure 1973. The expression “anticipatory bail” has not been defined in the Code. But as observed in Balchand Jain v. State of M.P.2 anticipatory bail means a bail in anticipation of arrest. The expression “anticipatory bail” is somewhat of a misnomer inasmuch as it is not as if bail presently granted is in anticipation of arrest. Where a competent 2(1976) 4 SCC 572 8 court grants “anticipatory bail” it makes an order that in the event of arrest a person shall be released on bail forthwith. There is no question of release on bail unless a person is arrested and therefore it is only on arrest that the order granting anticipatory bail becomes operative. 10. With the above background it becomes imperative to rely on the leading case of Gurbaksh Singh Sibbia v. State of Punjab3 The Full Bench of the High Court summarised the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down certain principles as to when discretionary power to grant anticipatory bail may be exercised by a Court. The Hon’ble Apex Court partly disagreeing with the judgment of the High Court held that the legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail since it felt firstly that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly because the intention seemed to be to allow the courts higher up in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. 11. The offences brought out against the petitioner is Section 306 of I.P.C. which may be reproduced below 3(1980) 2 SCC 565 9 “306. Abetment of suicide.—If commits suicide commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” Further it provides that if any person commits suicide whoever abets the commission of such suicide shall be liable to be punished with a sentence which may extend up to 10 years. However the abatement is not defined under the Section 306 of Penal Code hence one has to take the aid of Section 107 of Penal Code 1860. Section 107 of the I.P.C. reads as follows “107. Abetment of a thing.—A person abets the doing of a thing who— First.—Instigates any person to do that thing or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing Thirdly.—intentionally aids by any act or omission the doing of that thing.” In order to prove the charge of abetment the accused must have instigated a person to do a thing in this case to commit suicide or intentionally aided the deceased to commit suicide. If one goes by the suicide note of the deceased one would find that the deceased does not state how the appellant had instigated or intentionally aided him in committing suicide. The two terms “instigates” and aids” in Section 107 of Penal Code 1860 would necessarily require mens 10 rea on the part of the accused in order to hold him guilty of the offence of abatement of suicide. 12. The Hon’ble Supreme Court while dealing with the interpretation of Section 306 in M. Arjunan v. State4 has succinctly held that “7. The essential ingredients of the offence under Section 306 IPC are : the abetment the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused however insulting the deceased by using abusive language will not by itself constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 ingredients of The Hon’ble Supreme Court while dealing with the concept of abetment has expressed that the component of mens rea must shine forth as was held in the case of S.S. Chheena v. Vijay Kumar “25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 4(2019) 3 SCC 315 5(2010) 12 SCC 190 11 The Apex Court in Chitresh Kumar Chopra v. Stateto the court that a victim committing suicide was hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 6(2009) 16 SCC 605 7(1994) 1 SCC 73 12 Instigation is to goad urge forward provoke incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. It must also be noted that deceased had on previous occasions prior to the appointment of the petitioner also resorted to many agitational like dharnas gheraus and hunger strikes in the University. The deceased had threatened self immolation suicide as well as made requests for euthanasia on previous occasions to the erstwhile Vice Chancellors and Chancellors in order to pressurise the administration in the past demanding regularisation of service. Be that as it may in the present facts of the case a case for securing the custody of the present petitioner is not made out. not disclosed under Section 306 of the Indian Penal Code 1860 or not 13 is a matter which will be considered by the trial Court at the appropriate stage. 14. The Hon’ble Supreme Court in a similar case in the case of Bhausaheb v. State of. Maharashtra8 had granted anticipatory bail to the accused who had allegedly abetted suicide and was named by the deceased in the suicide note on the condition that the accused shall cooperate with investigation. Furthermore in Madan Mohan Singh v. State of Gujarat9 the Apex Court has opined that in so far as Section 306 IPC is concerned merely because a person had a grudge against his superior officer and committed suicide on account of that grudge even honestly feeling that he was wronged it would still not be a proper allegation for harnessing a charge under Section 306 of the IPC. Thus such cases have been held to be still falling short of a proper allegation. It would have to be objectively seen whether the allegations made could reasonably be viewed as proper allegations against the appellant accused to the effect that he had intended or engineered the suicide of the concerned person by his acts words etc. 15. The human sensitivity differs from person to person. It is unfortunate that such a tragic episode of suicide had taken place in the case of the deceased. But the question remains to be answered 8(2018) 3 SCC 221 9(2010) 8 SCC 628 14 is whether the petitioner herein can be connected with such unfortunate incident in any manner was there any motive or positive move on the part of the accused to abate such suicide etc. which can be established after a thorough inquiry followed by a proper trial. 16. Considering the facts and circumstances and the materials so far collected by the prosecuting agency it appears that if the present petitioner is enlarged on anticipatory bail at this stage it will not affect the investigation adversely. The petitioner is a noted educationalist and he is a Vice Chancellor of a reputed University throughout this period. No case has been made out warranting the petitioner s custodial interrogation and no reasonable apprehension lies that if the petitioner is released on bail he is likely to abscond therefore this court allows his prayer for anticipatory bail. 17. Accordingly this pre arrest bail application is allowed as follows: In case the petitioner is arrested in connection with Burla P.S. Case No.251 of 2021 he shall be released on bail forthwith on his executing bond of Rs.25 000 with two sureties each of the like amount to the satisfaction of the learned court in seisin over the matter with further condition that the petitioner shall cooperate with the investigation and shall not influence coerce or intimidate any witness. 15 18. It is made clear that the learned Court in seisin over the matter shall decide the case on its own merits in accordance with law uninfluenced by the observations made in this order. As a sequitur any pending applications are disposed of in light of the above. Judge Orissa High Court Cuttack The 2nd day of July 2021 AKK LNB AKP |
Judicial Review of administrative actions is intended to prevent arbitrariness, bias and mala fides. : Andhra Pradesh High Court | Administrative activity is subject to judicial review in order to prevent arbitrariness, irrationality, unreasonableness, bias, and mala fides. Its goal is to see if a choice or decision is made “lawfully,” not to see if the choice or decision is “sound.” Certain unique aspects should be kept in mind while using the judicial review power in instances involving tenders or contract awards was referred by Justice R.Raghunandan Rao of Andhra Pradesh High Court in the matter of M/S. K. Beeran Kutty versus State of Andhra Pradesh [WRIT PETITION No.10457 of 2021] The order was passed for the past 34 years, the petitioner claims to be a diet contractor who has supplied diet to inpatients and doctors at several hospitals in Tirupati, including the 3rd respondent hospital. The petitioner also works as a dietician for the fourth respondent hospital. Respondents 2 and 4 published a sealed tender notice in Sl.No.222/DIET/2021, dated 12.04.2021, for the supply of diet for inpatients and duty doctors for a two-year term. All offers submitted in response to the above-mentioned tender were to be evaluated in two stages: technical and financial. Learned Senior Counsel for the petitioner will argue that the petitioner’s bid was rejected because he had not provided an experience certificate for the previous three years and that all of his experience certificates were for times prior to 2017. He claims that the petitioner’s proposal could not have been rejected on that basis. He claims that the obligation to provide an experience certificate was stated in G.O.Ms.No.325 in clause 12 of the said G.O, which stated that a “good conduct certificate from the appropriate hospital authority” had been provided. Sri K.G.Krishna Murthy, learned Senior Counsel appearing for the petitioner, contends that the only requirement was that the petitioner provides a good conduct certificate and that in the absence of any stipulation for the period for which good conduct is required, the 3rd respondent committee could not have discriminated against the petitioner on the basis that the 5th respondent provided experience certificates. He contends that the 3rd respondent committee could not have imposed a condition requiring the certificate to be for immediate past experience in the absence of any provision as to the period for which such certificate should be presented.He claims that, in any case, he was the 3rd respondent’s diet supply contractor until 2020, and that he had applied to the 3rd respondent for the granting of such a certificate. The aforementioned certificate, however, was not issued by the 3rd respondent, therefore it could not be delivered. Because all three tenderers had quoted the same price and there was no possibility of a price reduction, the 2nd respondent committee had to consider the matter and make a decision as to who would be more suitable for executing the contract, according to learned Senior Counsel for the 5th respondent and learned Government Pleader for Medical and Health. In this situation, the 2nd respondent committee decided to award the contract to the 5th respondent because neither the petitioner nor any other tenderer to whom Sri Y.Koteswara Rao had provided up-to-date experience certificates. A summary of the foregoing decisions, as well as the Supreme Court’s decisions in Raunaq International Limited vs. I.V.R. Construction Limited Cochin International Airport Limited vs. Air India Limited (2007) 14 SCC 514 (1999) 1 SCC 492 International Airport Limited 8, Metcalfe & Hodgkinson (P) Limited vs. Master Marine Services (P) Limited 9, Michigan Rubber (India) Limited vs. State of Karnataka10, Municipal Corporation of Ujjain vs. BVG (India) Limited11 would establish the notion that courts should not typically intervene in contract award decisions unless there is clear illegality or arbitrariness. This claim must be dismissed for two reasons. To begin with, the petitioner attempted to obtain such a certificate from the 3rd respondent-hospital but was unable due to complaints filed against him while working as a diet contractor for the 3rd respondent-hospital. Second, it cannot be maintained that the 3rd respondent-choice committee’s to consider good performance as a criterion for finalising the tender is so arbitrary that no reasonable person would make such a judgement. | M S. K.Beeran Kutty vs The State Of Andhra Pradesh on 6 July 2021 Andhra Pradesh High Court Amravati M S. K.Beeran Kutty vs The State Of Andhra Pradesh on 6 July 2021 HON BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.104521 The petitioner submits that he is a diet contractor and has been supplied diet to inpatients and doctors at various hospitals in Tirupati including the 3rd respondent hospital for the past 34 years The petitioner is also a diet contractor for the 4th respondent hospital 2. Respondents 2 and 4 issued tender notification in Sl.No.222 DIET 2021 dated 12.04.2021 for supplying diet for inpatients and duty doctors for a period of two years in sealed tenders. All bids in pursuance of the said tender were to be considered in two stages technical bid and financial bid The tender document also stipulated that the conditions set out in G.O.Ms.No.325 HMFWLimited vs. State of Karnataka and Others3 ABL International Limited and Another vs Export Credit Guarantee Corporation of India Limited and Another4 6. The official respondents have filed a counter affidavit setting out their case. In the said counter affidavit it is stated that the services of the petitioner were sought to be terminated by the 2nd respondent on account of the dissatisfaction with the diet being supplied by the petitioner. This resulted in W.P.No.380318 and W.P.No.151117 which came16 SCC 4898 SCC 2163 SCC 553 to be disposed of by a Division Bench of this Court on 24.02.2021 wherein the Division Bench without going into the question regarding the legality or otherwise of the termination order dated 08.10.2018 was pleased to permit the petitioner to participate in the fresh tender. It is further contended in the counter that the representation of the petitioner on 19.04.2021 for issue of satisfactory certificate one day before the submission of the tender document on 20.04.2021 was not considered and no certificate was issued as there were various applications against the petitioner regarding short supply core quality skipping of certain items etc. It is stated that on account of these complainants a satisfactory certificate was not given to the petitioner 7. Sri Dammalapati Srinivas learned Senior Counsel appearing for 5th respondent and learned Government Pleader for Medical and Health have contended that in view of the fact that all the three tenderers had quoted the same price and there was no possibility for any reduction in the said price the 2nd respondent committee had to consider the matter and take a call as to who would be more suitable for executing the contract. In such a situation the 2nd respondent committee took the view that it would be appropriate to award the contract to the 5th respondent as neither the petitioner nor other tenderer to whom Sri Y.Koteswara Rao had furnished experience certificates which were up to date 8. The learned Government Pleader for Medical and Health would submit that the petitioner having applied for a satisfactory certificate on 19.04.2021 could not expect such certificate to be issued in one day. He further submits that the petitioner was fully aware of the fact that the last date of submission of tenders was 20.04.2021 and he could not have applied for a certificate on 19.04.2021 Consideration of the Court 9. The tender document stipulated that the intending bidders could bid for the contract in the price band of Rs.36 to Rs.40 only. In view of the said stipulation none of the bidders could have quoted a figure of less than Rs.36 . Accordingly all the three qualified bidders had bid for the tender at the rate of Rs.36 Indian Kanoon M S. K.Beeran Kutty vs The State Of Andhra Pradesh on 6 July 2021 10. In the light of the bids of all the tenderers being at the lowest rate possible the tendering authority was faced with the requirement of selecting one of the bidders out of the three bids available. In the circumstances the 3rd respondent committee was given the task of narrowing the o f f e r t o o n e b i d d e r . A f t e r c o n s i d e r i n g a l l c i r c u m s t a n c e s i t a p p e a r s t h a t t h e 3 r d respondent committee decided to apply the criteria of satisfactory experience as the deciding factor for finalising the bid in favour of the 5th respondent on the ground that only the 5th respondent had a satisfactory certificate available for the latest period 11. The application of the criteria has been challenged by the petitioner. The question that arises before this Court is whether the application of such a criteria is permissible or would amount to an arbitrary action of the respondents which requires to be set aside 12. Before answering that question it would be necessary to understand the scope of such an exercise by this Court under Article 226 of the Constitution of India 13. The Judgments cited by Sri K.G.Krishna Murthy learned Senior Counsel would set out the contours of such judicial review of government practice. The leading case in this regard would be Tata Cellular vs. Union of India5 which has been followed by the Hon ble Supreme Court in the Judgments cited above. In the circumstances paragraph 94 of the said Judgment would be relevant 1) The modern trend points to judicial restraint in administrative action 2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made 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.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 experts 1994) 6 SCC 651The 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 mala fides Indian Kanoon M S. K.Beeran Kutty vs The State Of Andhra Pradesh on 6 July 2021 6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure 14. The said Judgment has been consistently followed by the Hon ble Supreme Court. In Jagadish Mandal vs. State of Orissa6 Para 22 of the said Judgment reads as follows 22. Judicial review of administrative action is intended to prevent arbitrariness 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 is a commercial transaction. Evaluating 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 judicial review interfere even if a procedural 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 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 succour to thousands and millions and may increase the project cost manifold 15. A conspectus of the above Judgements and the Judgments of the Hon ble Supreme Court in Raunaq International Limited. vs. I.V.R. Construction Limited7 Air India Limited Vs.Cochin 2007) 14 SCC 5141 SCC 492 International Airport Limited8 Master Marine ServicesLimited9 Michigan RubberLimited vs. State of Karnataka10 Municipal Corporation. Ujjain vs. BVGLimited. 11 would lay down the principle that the Courts should not normally intervene in the decision making process for award of contracts unless blatant illegality and arbitrariness can be pointed out. The contention of the Court is to ascertain whether there was any illegality or arbitrariness in the decision making process rather than the question of whether the decision was a sound decision. In the present case the 3rd respondent committee was left with an unenviable task of finalising the tender in favour of one b i d d e r w h i l e t h e b i d s o f a l l t h e t h r e e q u a l i f i e d b i d d e r s w e r e t h e s a m e . T h e 3 r d respondent committee discharged this task by fixing the satisfactory conduct of the bidders as the 16. In the circumstances such a criteria cannot be treated as arbitrary criteria. It has been the contention of Sri K.G.Krishna Murthy learned Senior Counsel for the petitioner that in the absence of stipulating such a criteria in the tender document the 3rd respondent committee could not have fixed such a criteria subsequent to the submission of the tenderers. It was further submitted that Indian Kanoon M S. K.Beeran Kutty vs The State Of Andhra Pradesh on 6 July 2021 fixing such a criteria subsequent to the filing of the bids caused prejudice to the petitioner as the petitioner would2 SCC 6176 SCC 1388 SCC 2165 SCC 462 have been able to get a certificate of satisfactory performance up to 2020 from the 3rd respondent hospital 17. This contention has to be rejected on two grounds. Firstly the petitioner did attempt to get such a certificate from the 3rd respondent hospital and was unsuccessful on account of the complaints given against the petitioner while he was a diet contractor for the 3rd respondent hospital Secondly it cannot be held that the decision of the 3rd respondent committee in considering satisfactory performance as a criteria for finalising the tender can be treated as an action which is so arbitrary that no reasonable person would have taken such a call 18. In the circumstances it cannot be held that the decision taken by the respondents in finalising the tender in favour of the 5th respondent and awarding the contract to the 5th respondent is so arbitrary that it requires interference from this Court 19. In the circumstances the Writ Petition has been failed and accordingly dismissed As a sequel pending miscellaneous petitions if any shall stand closed R. RAGHUNANDAN RAO J 06.07.2021 RJS HON BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.104521 06.07.2021 RJS Indian Kanoon |
Emkay Global Financial V/S Gindhar Sondhi | “There is an exclusive jurisdiction clause vesting such jurisdiction only in the courts at Mumbai” The present appeal arises out of a dispute between the Appellant, who is a registered broker with the National Stock Exchange, and the Respondent, its client, regarding certain transactions in securities and shares.The Respondent had initiated an arbitration proceeding against the Appellant, claiming an amount of Rs.7,36,620/-, which was rejected by the Sole Arbitrator vide an Arbitration Award dated 08.12.2009. PROCEDURAL HISTORY:The bye-laws go on to describe the relevant authority prescribing regulations for creation of seats of arbitration for different regions, or prescribing geographical locations for conducting arbitrations, and prescribing the courts which shall have jurisdiction for the purpose of the Act see Chapter XI dealing with Arbitration clause 4(a)(iv).Equally, under sub- clause (xiv), the place of arbitration for each reference and the places where the Arbitrator can hold meetings have also to be designated. It is common ground that the National Stock Exchange referred the dispute to one Shri Mahmood Ali Khan, who held sittings in Delhi, and delivered an award dated 08.12.2009, whereby the Respondents claim was rejected.The Respondent then filed a Section 34 application under the Arbitration and Conciliation Act, 1996 on 17.03.2010 before the District Court, Karkardooma, Delhi. By a judgment dated 22.09.2016, the learned Additional District Judge referred to the exclusive jurisdiction clause contained in the agreement, and stated that he would have no jurisdiction to proceed further in the matter and, therefore, rejected the Section 34 application filed in Delhi. ISSUE BEFORE THE COURT:The record of the Arbitrator was held to be sufficient in order to furnish proof of whether the grounds under Section 34 had been made out? RATIO OF THE COURT:The court held after considering all the submissions by learned counsels that section 34 is application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if (a) The party making the application furnishes proof that (i) A party was under some incapacity; or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. (iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside. The court observed that exclusive jurisdiction clause was dealt with by this Court in several judgments, the most recent of which is the judgment contained in Indus Mobile Distribution Pvt. Ltd. (supra). In this case, the arbitration was to be conducted at Mumbai and was subject to the exclusive jurisdiction of courts of Mumbai only. After referring to the definition of Court contained in Section 2(1)(e) of the Act, and Section 20 and 31(4) of the Act, this Court referred to the judgment of five learned Judges in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, in which, the concept of juridical seat which has been evolved by the courts in England, has now taken root in our jurisdiction.It is clear that once courts in Mumbai have exclusive jurisdiction thanks to the agreement dated 03.07.2008, read with the National Stock Exchange bye-laws, it is clear that it is the Mumbai courts and the Mumbai courts alone, before which a Section 34 application can be filed. The arbitration that was conducted at Delhi was only at a convenient venue earmarked by the National Stock Exchange, which is evident on a reading of bye-law 4(a)(iv) read with (xiv) contained in Chapter XI.The court stated that an application under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need not be framed in applications under Section 34 of the Act.Applications under Section 34 of the Act are summary proceedings with provision for objections by the respondent-defendant, followed by an opportunity to the applicant to prove the existence of any ground under Section 34(2). The applicant is permitted to file affidavits of his witnesses in proof. A corresponding opportunity is given to the respondent-defendant to place his evidence by affidavit. Where the case so warrants, the court permits cross-examination of the persons swearing to the affidavit. Thereafter, the court hears arguments and/or receives written submissions and decides the matter. This is of course the routine procedure. The court may vary the said procedure, depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as contemplated under Rule 1 of Order 14 of the Code is not an integral part of the process of a proceedings under Section 34 of the Act.The court observed that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding under Section 34, this object will be defeated. It is also on the cards that if Bill No.100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether.The court observed that the two early Delhi High Court judgments, cited by us hereinabove, correctly reflect the position in law as to furnishing proof under Section 34(2)(a). So does the Calcutta High Court judgment (supra). The court hastened to add that if the procedure followed by the Punjab and Haryana High Court judgment (supra) is to be adhered to, the time limit of one year would only be observed in most cases in the breach.This court were constrained to observe that Fiza Developers (supra) was a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must now be read in the light of the amendment made in Section 34(5) and 34(6). So read, the court clarifies the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator.However, if there are matters not contained in such record, and are relevant to the determination of issues arising under Section 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross- examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties. DECISION HELD BY COURT:The court set aside the judgment of the Delhi High Court and reinstate that of the learned Additional District Judge dated 22.09.2016. The appeal is accordingly allowed with no order as to costs. | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8367 OF 2018 ARISING OUT OF SLPNO.33248 OF 2017 M S EMKAY GLOBAL FINANCIAL JUDGMENT R.F. NARIMAN J Leave granted. The present appeal arises out of a dispute between the Appellant who is a registered broker with the National Stock Exchange and the Respondent its client regarding certain transactions in securities and shares. The Respondent had initiated an arbitration proceeding against the Appellant claiming an amount of Rs.7 36 620 which was rejected by the Sole Arbitrator vide an Arbitration Award dated 08.12.2009. The appeal arises out of an agreement dated 03.07.2008 which contains the following clauses: 1. The parties hereto agree to abide by the provisions of the Depositories Act 1996 SEBI Regulation 1996 Bye Laws and Operating Instructions issued by CDSL from time to time in the same manner and to the same extent as if the same were set out herein and formed part of this Agreement.” xxx xxx xxx 11. The parties hereto shall in respect of all disputes and differences that may arise between them abide by the provisions relating to arbitration and conciliation specified under the Bye Laws.” xxx xxx xxx 12. The parties hereto agree to submit to the exclusive jurisdiction of the courts in Mumbai in Maharashtra(a) Any deal entered into through automated trading system of the Exchange or any proposal for buying or selling or any acceptance of any such proposal for buying and selling shall be deemed to have been entered at the computerised processing unit of the Exchange at Mumbai and the place of contracting as between the trading members shall be at Mumbai. The trading members of the Exchange shall expressly record on their contract note that they have excluded the jurisdiction of all other Courts save and except Civil Courts in Mumbai in relation to any dispute arising out of or in connection with or in relation to the contract notes and that only the Civil Courts at Mumbai have exclusive jurisdiction in claims arising out of such dispute. The provisions of this Byelaw shall not object the jurisdiction of any court deciding any dispute as between trading members and their constituents to which the Exchange is not a party.” The bye laws go on to describe the relevant authority prescribing regulations for creation of seats of arbitration for different regions or prescribing geographical locations for conducting arbitrations and prescribing the courts which shall have jurisdiction for the purpose of the Act see Chapter XI dealing with Arbitration clause 4(a)(iv). Equally under sub clausethe place of arbitration for each reference and the places where the Arbitrator can hold meetings have also to be designated. It is common ground that the National Stock Exchange referred the dispute to one Shri Mahmood Ali Khan who held sittings in Delhi and delivered an award dated 08.12.2009 whereby the Respondent’s claim was rejected. The Respondent then filed a Section 34 application under the Arbitration and Conciliation Act 1996 on 17.03.2010 before the District Court Karkardooma Delhi. By a judgment dated 22.09.2016 the learned Additional District Judge referred to the exclusive jurisdiction clause contained in the agreement and stated that he would have no jurisdiction to proceed further in the matter and therefore rejected the Section 34 application filed in Delhi. In an appeal filed before the High Court a learned Single Judge of the Delhi High Court held as follows “4. Accordingly since the impugned judgment decides the disputed question of fact without allowing parties to lead evidence i.e. depositions supported by documentary evidence and without opportunity to the other side to cross examine the witnesses who give depositions it is necessary that the disputed questions of fact as regards existence of territorial jurisdiction of the courts at Delhi be decided by the court below after framing an issue to this effect and permitting the parties thereafter to lead evidence on the same. 5. I may hasten to add that I have not made any observations one way or the other for or against any of the parties herein on the aspect of territorial jurisdiction and this issue of territorial jurisdiction will be decided by the courts below after parties have led evidence keeping in mind that if part of cause of action is proved to have arisen in Mumbai and there is an exclusivity clause conferring territorial jurisdiction of the Mumbai courts then even if Delhi courts otherwise have jurisdiction possibly the courts at Delhi would not exercise territorial jurisdiction 6. Parties to appear before the District and Sessions Judge East Karkardooma Courts Delhi on 7th November 2017 and the District and Sessions Judge will now mark the objections under Section 34 of the Arbitration and Conciliation Act to a competent court for disposal in accordance with law and the observations made in the Learned counsel appearing on behalf of the Appellant has relied upon the exclusive jurisdiction clause contained both in the agreement as well as the bye laws of the National Stock Exchange. According to him this case is squarely covered by a recent judgment of this Court in Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. and Ors. 7 SCC 678. He also referred to Section 34 and stated that given the conspectus of judgments of the High Courts and one judgment of this Court when Section 34(2)(a) speaks of a party making an application who “furnishes proof” of one of the grounds in the sub section such proof should only be by way of affidavit of facts not already contained in the record of proceedings before the 1 Girdhar Sondhi v. M s. Emkay Global Financial Services Ltd. FAO 2217states as follows “34. Application for setting aside arbitral award.—and sub sectionAn arbitral award may be set aside by the Court a) the party making the application furnishes i) a party was under some incapacity or ii) the arbitration agreement is not valid under the law to which the parties have subjected it or failing any indication thereon under the law for the time being in force or iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case or iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it contains decisions on matters beyond the scope of the submission to arbitration Provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside or v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate or failing such agreement was not in accordance with this Part or xxx xxx xxx” The effect of an exclusive jurisdiction clause was dealt with by this Court in several judgments the most recent of which is the judgment contained in Indus Mobile Distribution Pvt. Ltd. of the Act and Section 20 and 31(4) of the Act this Court referred to the judgment of five learned Judges in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. 9 SCC 552 in which the concept of juridical seat which has been evolved by the courts in England has now taken root in our jurisdiction. After referring to several judgments and a Law Commission Report this Court held “19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated it is akin to an exclusive jurisdiction clause. On the facts of the present case it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration unlike the Code of Civil Procedure which applies to suits filed in courts a reference to “seat” is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction — that is no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of CPC be attracted. In arbitration law however as has been held above the moment “seat” is determined the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the 20. It is well settled that where more than one court has jurisdiction it is open for the parties to exclude all other courts. For an exhaustive analysis of the case law see Swastik GasesLtd. v. Indian Oil Corpn. Ltd. Ltd. v. Indian Oil Corpn. Ltd. 9 SCC 32 2013) 4 SCC 157]. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal v Chhattisgarh Investment Ltd.12 SCC 225 :1 SCC427]. Having regard to the above it is clear that Mumbai courts alone have jurisdiction to the exclusion of all other courts in the country as the juridical seat of arbitration is at Mumbai. This being the case the impugned judgmentLtd. v. Indus Mobile DistributionLtd. 2016 SCC OnLine Del 3744] is set aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment so that the respondents may take necessary steps under Section 9 in the Mumbai Court. The appeals are disposed of Following this judgment it is clear that once courts in Mumbai have exclusive jurisdiction thanks to the agreement dated 03.07.2008 read with the National Stock Exchange bye laws it is clear that it is the Mumbai courts and the Mumbai courts alone before which a Section 34 application can be filed The arbitration that was conducted at Delhi was only at a convenient venue earmarked by the National Stock Exchange which is evident on a reading of bye law 4(a)(iv) read withcontained in Chapter XI However the matter does not rest here. The learned Single Judge went on to remand the matter for a full dressed hearing on what he referred to as a ‘disputed question of fact’ relating to jurisdiction. What is meant by the expression “furnishes proof” in Section 34(2 a) In an early Delhi High Court judgment Sandeep Kumar v. Dr. Ashok Hans 2 a learned Single Judge of the Delhi High Court specifically held that there is no requirement under the provisions of Section 34 for parties to lead evidence. The record of the Arbitrator was held to be sufficient in order to furnish proof of whether the grounds under Section 34 had been made out. Again a learned single Judge of the Delhi High Court in Sial Bioenergie v. SBEC Systems 3 stated “5. In my view the whole purpose of the 1996 Act would be completely defeated by granting permission to the applicant JD to lead oral evidence at the stage of objections raised against an arbitral award. The 1996 Act requires expeditious disposal of the objections and the minimal interference by the Court as is evident from the Statement of Objects and Reasons of the Act which reads “4. The main objectives of the Bill are as under:— ii) To make provision for an arbitral procedure 23 Arb LR 306 3 AIR 2005 Del 95 which is fair efficient and capable of meeting the needs of the specific arbitration.” xxx xxx xxx xxx xxx xxx v) to minimize the supervisory role of courts in the arbitral process 6. At the stage of the objections which are any way limited in scope due to the provisions of the Act to permit oral evidence would completely defeat the objects underlying the 1996 Act. The process of oral evidence would prolong the process of hearing objections and cannot be 7. Furthermore the Supreme Court in FCI v. Indian Council for Arbitration 2003 SCC 564 had summarized the ethos underlying the Act as follows:— “The legislative intent underlying the 1996 Act is to minimize the supervisory role of the Courts in the arbitral process and nominate appoint the arbitrator without wasting time leaving all contentious issues to be urged and agitated before the arbitral tribunal itself.” 8. Accordingly I see no merit in these applications and the prayer made therein is rejected.” We now come to a judgment of this Court in Fiza Developers Inter Trade Pvt. Ltd. v. AMCIPvt. Ltd. and Anr. 17 SCC 796 In this case the question that was posed by the Court was whether issues as contemplated under Order XIV Rule 1 of the Code of Civil Procedure 1908 should be framed in applications under Section 34 of the Arbitration and Conciliation Act 1996. This Court held “14. In a summary proceeding the respondent is given an opportunity to file his objections or written statement Thereafter the court will permit the parties to file affidavits in proof of their respective stands and if necessary permit cross examination by the other side before hearing arguments. Framing of issues in such proceedings is not necessary. We hasten to add that when it is said issues are not necessary it does not mean that evidence is not xxx xxx xxx “17. The scheme and provisions of the Act disclose two significant aspects relating to courts vis à vis arbitration The first is that there should be minimal interference by courts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to court requiring promptness in disposal 18. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force in matters governed by Part I of the Act no judicial authority shall intervene except where so provided in the xxx xxx xxx xxx xxx xxx xxx xxx xxx “21. We may therefore examine the question for consideration by bearing three factors in mind. The first is that the Act is a special enactment and Section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in sub sectionof Section 34 exists. The third is that proceedings under Section 34 requires to be dealt “24. In other words an application under Section 34 of the Act is a single issue proceeding where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need not be framed in applications under Section 34 of the Act.” “31. Applications under Section 34 of the Act are summary proceedings with provision for objections by the respondent defendant followed by an opportunity to the applicant to “prove” the existence of any ground under Section 34(2). The applicant is permitted to file affidavits of his witnesses in proof. A corresponding opportunity is given to the respondent defendant to place his evidence by affidavit. Where the case so warrants the court permits cross examination of the persons swearing to the affidavit Thereafter the court hears arguments and or receives written submissions and decides the matter. This is of course the routine procedure. The court may vary the said procedure depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as contemplated under Rule 1 of Order 14 of the Code is not an integral part of the process of a proceedings under Section 34 of the Act.” A Punjab and Haryana High Court judgment in M s Punjab State Industrial Development Corporation v. Mr. Sunil K. Kansal 4 after referring to our judgment in Fiza Developersheld “30. In view of the above we answer the question of law framed as follows i) The issues as required under Order XIV Rule 1 of the Code as in the regular suit are not required to be mandatorily framed by the Court However it is open to the Court to frame questions which may arise for adjudication ii) The Court while dealing with the objections under Section 34 of the Act is not bound to grant opportunities to the parties to lead evidence as in the regular civil suit. The jurisdiction of the Court being more akin to the appellate jurisdiction iii) The proceedings before the Court under Section 34 of the Act are summary in nature Even if some questions of fact or mixed questions of law and or facts are to be decided the court while permitting the parties to furnish affidavits in evidence can summon the witness for cross examination if desired by the other party. Such procedure is keeping in view the principles of 4 2012 SCC OnLine P&H 19641held that oral evidence is not required under a Section 34 application when the record before the Arbitrator would show whether the petitioners had received notice relating to his appointment. In Cochin Shipyard Ltd. v. Apeejay Shipping Ltd. 15 SCC 522 this Court in a case arising out of the Arbitration Act 1940 did not follow the decision in Fiza Developers as objections to be filed under Sections 30 and 33 of the 1940 Act did not require any kind of oral evidence to be led. A recent report of the Justice B.N. Srikrishna Committee to review the institutionalization of the arbitration mechanism in India has found: “5. Amendment to Section 34(2)(a) of the ACA Sub sectionof section 34 of the ACA provides for the setting aside of arbitral awards by the court in certain circumstances. The party applying for setting aside the arbitral award has to furnish proof to the court. This requirement to furnish proof has led to inconsistent practices in some High Courts where they have insisted on section 34 proceedings being conducted in the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers & Inter Trade P. Ltd. v. AMCIto ensure that proceedings under section 34 are conducted 5 2012 SCC OnLine Cal 4271of the Arbitration and Conciliation Act 1996 substituting the words “furnishes proof that” with the words “establishes on the basis of the arbitral tribunal’s record We have been informed that the Arbitration and Conciliation Amendment) Bill of 2018 being Bill No.1018 contains an amendment to Section 34(2)(a) of the principal Act which reads as follows “In section 34 of the principal Act in sub section in clausefor the words “furnishes proof that” the words “establishes on the basis of the record of the arbitral tribunal that" shall be substituted.”6 One more recent development in the law of arbitration needs to be adverted to. After the decision in Fiza Developers Section 34 was amended by Act 16 by which sub sectionsandwere added to the principal Act with effect from 23.10.2015. Section 34(5) and 34(6) reads as “34. Application for setting aside arbitral award.— xxx xxx xxx 5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said 6) An application under this section shall be disposed of expeditiously and in any event within a period of one year from the date on which the notice referred to in sub section 5) is served upon the other party.” 6 Bill No.1018 THE ARBITRATION AND CONCILIATIONBILL 2018 p. 3 In a recent judgment of this Bench in The State of Bihar and Ors. v Bihar Rajya Bhumi Vikas Bank Samiti SLP No. 4475 of 2017 decided on 30.07.2018) this Court after holding that the period of one year mentioned in the aforesaid sub section is directory went on to hold “27. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However we may add that it shall be the endeavour of every Court in which a Section 34 application is filed to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant or by the Court as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application similar to what has been provided in Section 14 of the Commercial Courts Commercial Division and Commercial Appellate Division of High Courts Act 2015. This will give effect to the object sought to be achieved by adding Section 13(6 by the 2015 Amendment Act 28. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts Commercial Division and Commercial Appellate Division of High Courts Act 2015 the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible preferably within one year from the date on which the appeal is filed ” It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object Quite obviously if issues are to be framed and oral evidence taken in a summary proceeding under Section 34 this object will be defeated. It is also on the cards that if Bill No.1018 is passed then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law we are of the view that the two early Delhi High Court judgments cited by us hereinabove correctly reflect the position in law as to furnishing proof under Section 34(2)(a). So does the Calcutta High Court judgment is to be adhered to the time limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are constrained to observe that Fiza Developerswas a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application which is a summary procedure. However this judgment must now be read in the light of the amendment made in Section 34(5) and 34(6). So read we clarify the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the Arbitrator. However if there are matters not contained in such record and are relevant to the determination of issues arising under Section 34(2)(a) they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross examination of persons swearing to the affidavits should not be allowed unless absolutely necessary as the truth will emerge on a reading of the affidavits filed by both parties. We therefore set aside the judgment of the Delhi High Court and reinstate that of the learned Additional District Judge dated 22.09.2016. The appeal is accordingly allowed with no order as to New Delhi August 20 2018 Hon ble Mr. Justice Rohinton Fali Nariman The appeal is allowed in terms of the signed Pending applications if any shall stand disposed |
A Magistrate does not have investigative powers to record statements during the investigation: Rajasthan High Court | The Magistrate does not have the power to record statements of a person unsponsored by the Investigating Agency since it might lead to burdening the Magistrate with additional tasks while simultaneously also opening up new avenues for culprits to escape the from the hands of the judiciary. The single bench consisting of J. Sanjeev Prakash Sharma, in the matter of Ramswaroop S/o Shri Bherulal, Present Sewa Sahakari Samit Nagal Bairasi Tehsil Dausa District Dausa (Raj.) v. State of Rajasthan through P.P. [S.B. Criminal Miscellaneous (Petition) No. 3545/2020], shed light upon the investigating powers of the Police. The petitioner-victim lodged a complaint against the accused as an FIR under Section 156(3) Crpc. The FIR was registered under Section 406, 420, 167, 467, 468, 471 & 120-B of the IPC wherein the allegation levelled against the accused was that of embezzlement of a huge sum of Rs. 6,07,29,306/-. In the present petition, the petitioner argued that his statement was wrongfully recorded by the Investigating Officer under Section 161 Crpc. The petitioner had previously moved an application to the Magistrate seeking liberty to give his statement under Section 164 Crpc. on oath so that the correct facts may go on the court records. In this application, the victim claimed that the Investigating Officer was helping the accused and therefore not recording the statement correctly. The Magistrate rejected the application relying on the Supreme Court judgement in the case of Jogendra Nahak & Others v. State of Orissa and Others [(2000) 1 SCC 272], wherein it was observed that “the statement of witnesses cannot be directly recorded by the Magistrate as it would open a pandora’s box and it should be only when an application is moved by the concerned Investigating Officer that the statement can be recorded of a witness under Section 164 Crpc.”. In the present petition, the counsel for the petitioner submits that the facts of the aforementioned case were completely different from the present case. In the former case, the witnesses wanted to bring the correct facts on record before the Investigating Officer and hence, approached the HC, however, in the present case, it is the victim himself who wants to do so. The counsel hence, pleaded that it should be directed to the Magistrate to record the statement of the petitioner in the interest of justice. The High Court, having considered the submissions, looked into Chapter XII of the Crpc. which lays down provisions relating to information to the Police and their powers to investigate. Considering Section 163 and 164 of the same the court said that “it is apparent that while the statement of witnesses can be examined and recorded by the Police under Section 161 Crpc. and such statements are not required to be signed in terms of Section 162. Section 163 provides that no Police Officer or any other authority shall prevent by any caution or otherwise any person in the course of any investigation under this Chapter any statement which he may be deposed to make on his own free will. The question before this court is that if such is the case as alleged by the petitioner who has been prevented to give his statement of his own free will and his statement under Section 161 Cr.P.C. has been recorded against his will, can he move an application before the Magistrate for getting his statement recorded in support of the complaint made by him”. Further looking at the Jogendra Nahak case, the HC rejected the petition stating that “the Supreme Court has held that Magistrate does not have the power to record the statement of a person unsponsored by the Investigating Agency. In other words, it has empowered only the Investigating Agency to move an appropriate application for recording the statement of any witnesses”. Click here to read the judgement | on 16 11 2020 at 11:24:56 AM ) No.3545 2020Ramswaroop S o Shri Bherulal Present Sewa Sahakari SamitNagal Bairasi Tehsil Dausa District DausaPetitionerVersusState Of Rajasthan through P.P. RespondentFor Petitioner(s) : Mr. M.K. KaushikFor Respondent(s): Mr. Ramesh Choudhary PPHON BLE MR. JUSTICE SANJEEV PRAKASH SHARMAJudgmentReportable:06 11 20201.The present petition has been filed by the petitioner victim who had lodged the complaint against the accused which wasregistered as an FIR under Section 156(3) Cr.P.C. and sent forinvestigation to the Investigating Officer. An FIR was registeredunder Sections 406 420 167 467 468 471 & 120 B IPC whereinan allegation has been levelled of the accused having committedan embezzlement of a huge sum of Rs.6 07 29 306 . 2.The grievance of the petitioner victim is that when heappeared before the Investigating Officer his statement waswrongfully recorded under Section 161 Cr.P.C. by the InvestigatingOfficer and he therefore moved an application to the concernedMagistrate seeking liberty to give his statement under Section 164Cr.P.C. on oath so that the correct facts may come out before thecourt. It is his submission that the Investigating Officer was trying[CRLMP 3545 2020]to help the accused and was therefore not recording the statementof the petitioner correctly. 3.Learned counsel points out that the statement was recordedby the Investigating Officer on 9.7.2020 and when the petitionerlearnt that the statement has been wrongfully recorded heimmediately moved an application on the next date before theconcerned Magistrate.4.The petitioner’s counsel submits that the learned Magistratehas rejected application of the petitioner relying on the law as laiddown by the Supreme Court in the case of Jogendra Nahak &Others Versus State of Orissa & Others reported in 2000(1)SCC 272 wherein the Supreme Court has observed that thestatement of witnesses cannot be directly recorded by theMagistrate as it would open a pandora’s box and it should be onlywhen an application is moved by the concerned InvestigatingOfficer that the statement can be recorded of a witness underSection 164 Cr.P.C. Learned counsel for the petitioner also submitsthat the facts of the case in Jogendra Nahak & Others[CRLMP 3545 2020]6.However the facts of the present case are totally differentand learned counsel submits that in the present case it is thevictim i.e. complainant who is seeking his correct statement to berecorded and has alleged that the Investigating Officer haswrongfully recorded his statement.7.Learned counsel also submits that the provisions of Section163(2) Cr.P.C. allow a person to make his submission on hisfreewill independent of the statement made before theInvestigating Officer and such provision is only subject to theconditions for recording confessional statement as under Section164(4) Cr.P.C. Learned counsel submits that the said aspect hasnot been considered in the judgment of the Jogendra Nahak &Othersand therefore the facts of the present case aredistinguishable from that before the Hon’ble Apex Court.8.He therefore prays that in the present case the directionsought to be issued to the learned Magistrate to record thestatement of the petitioner so that the facts which have beenmentioned in the FIR are supported by the petitioner through hisstatement made on oath under Section 164 Cr.P.C. It would alsobe in the interest of justice that the correct facts are thereforecome before the court to bring home conviction to the concernedaccused.9.I have considered the submissions.10.Chapter XII of Cr.P.C. lays down the provisions relating toinformation to the Police and their powers to investigate. Once anFIR has been registered either under Section 154 Cr.P.C. or afterdirections issued under Section 126(3) Cr.P.C. powers have beenprovided to the Police Officer to conduct investigation inpreliminary inquiry and also examined the witnesses under[CRLMP 3545 2020]Section 161 Cr.P.C. Section 162 Cr.P.C. lays down provisions andtheir statements to the Police are not required to be signed andthe relevance to such statement for the purpose of evidence interms of Section 145 of the Evidence Act also have been noticedunder Section 162 Cr.P.C.11.Section 163 and 164 Cr.P.C. which are relevant for thepresent case reads as under: “163. No inducement to be offered.—(1) Nopolice officer or other person in authority shall offer ormake or cause to be offered or made any suchinducement threat or promise as is mentioned in section24 of the Indian Evidence Act 1872But no police officer or other person shall prevent byany caution or otherwise any person from making in thecourse of any investigation under this Chapter anystatement which he may be disposed to make of his ownfree will: Provided that nothing in this sub section shallaffect the provisions of sub sectionof section 164. 164. Recording of confessions andstatements.—(1) Any Metropolitan Magistrate orJudicial Magistrate may whether or not he hasjurisdiction in the case record any confession orstatement made to him in the course of an investigationunder this Chapter or under any other law for the timebeing in force or at any time afterwards before thecommencement of the inquiry or trial:(2) The Magistrate shall before recording any suchconfession explain to the person making it that he is notbound to make a confession and that if he does so itmay be used as evidence against him and theMagistrate shall not record any such confession unless upon questioning the person making it he has reason tobelieve that it is being made voluntarily.(3) If at any time before the confession is recorded theperson appearing before the Magistrate states that he isnot willing to make the confession the Magistrate shall[CRLMP 3545 2020]not authorise the detention of such person in policecustody.(4) Any such confession shall be recorded in the mannerprovided in section 281 for recording the examination ofan accused person and shall be signed by the personmaking the confession and the Magistrate shall make amemorandum at the foot of such record to the followingeffect:—“I have explained tothat he is not bound tomake a confession and that if he does so anyconfession he may make may be used as evidenceagainst him and I believe that this confession wasvoluntarily made. It was taken in my presence andhearing and was read over to the person making it andadmitted by him to be correct and it contains a full andtrue account of the statement made by him. A. B. Magistrate.”Any statementmade undersub sectionshall be recorded in such mannerhereinafter provided for the recording of evidence as is in the opinion of the Magistrate best fitted to thecircumstances of the case and the Magistrate shall havepower to administer oath to the person whose statementis so recorded.(a) In cases punishable under section 354 section354A section 354B section 354C section 354D subsectionor sub sectionof section 376 section376A section 376B section 376C section 376D section376E or section 509 of the Indian Penal Codethe Judicial Magistrate shall record the statementof the person against whom such offence has beencommitted in the manner prescribed in sub sectionas soon as the commission of the offence is brought tothe notice of the police: Provided that if the person making the statement istemporarily or permanently mentally or physicallydisabled the Magistrate shall take the assistance of aninterpreter or a special educator in recording thestatement: Provided further that if the person making the statementis temporarily or permanently mentally or physicallydisabled the statement made by the person with theassistance of an interpreter or a special educator shallbe videographed.A statement recorded under clauseof a person who is temporarily or permanently mentally or physicallydisabled shall be considered a statement in lieu of[CRLMP 3545 2020]examination in chief as specified in section 137 of theIndian Evidence Act 1872such that themaker of the statement can be cross examined on suchstatement without the need for recording the same atthe time of trial.]The Magistrate recording a confession or statementunder this section shall forward it to the Magistrate bywhom the case is to be inquired into or tried. 12.From the perusal of the aforesaid provisions it is apparentthat while statement of witnesses can be examined and recordedby the Police under Section 161 Cr.P.C. and such statements arenot required to be signed in terms of Section 162. Section 163provides that no Police Officer or any other authority shall preventby any caution or otherwise any person in the course of anyinvestigation under this Chapter any statement which he may bedeposed to make on his own freewill.13.The question before this court is that if such is the case asalleged by the petitioner who has been prevented to give hisstatement of his own freewill and his statement under Section 161Cr.P.C. has been recorded against his will can he move anapplication before the Magistrate for getting his statementrecorded in support of the complaint made by him.14.A close look at the judgment passed by the Supreme Courtin the case of Jogendra Nahak & Others(supra) shows that theApex Court had dealt with the provisions of the aforesaid Chapterand has observed as under: “7. The argument addressed is that if theMagistrate has power to record a statement underSection 164 of the Code at the instance of a witness this is not the stage to consider whether witness hasapproached the Magistrate with bonafides or not asthat aspect should have been left to the trial court todecide while considering the reliability of his testimony.At present we may decide the question whether awitness can on his own motion approach a Magistrate[CRLMP 3545 2020]with a request that his statement may be recordedunder Section 164 of the Code.15. Section 160 of the Code deals with thepowers and duties of the police regarding examination(including interrogation) of persons who areacquainted with the facts and circumstances of thecase and also regarding the use of such statements inthe trial. It is in the above context that Section 164 isincorporated in this Chapter for recording ofconfessions and statements.16. By Sections 165 to 173 the Code prescribesprovisions which the police have to adopt as follow upsteps in the matter of investigation and also therequirements to be complied with on conclusion ofsuch investigation. 17. Section 173 says that on completion ofinvestigation the officer in charge of police stationshall forward a report to the Magistrate stating interalia the names of the persons who appear to beacquainted with the circumstances of the case. Sub sectionof Section 173 requires that the policeofficer shall forward to the Magistrate along with thesaid reportall documents or relevant extractsthereof on which the prosecution proposes to rely and(b) the statements recorded under Section 161 of allthe persons whom the prosecution proposes toexamine as its witnesses. 18. Even when a further investigation asindicated under Sub sectionis conducted by thepolice they have to comply with all the requirementscontained in the preceding sub sections.19. In the scheme of the above provisions thereis no set or stage at which a Magistrate can take noteof a stranger individual approaching him directly with aprayer that his statement may be recorded inconnection with some occurrence involving a criminaloffence. If a Magistrate is obliged to record thestatements of all such persons who approach him thesituation would become anomalous and everymagistrate court will be further crowded with anumber of such intending witness brought up at thebehest of accused persons.”15.And after considering the law it has reached to the followingconclusion which reads as under: “22. If a Magistrate has power to recordstatement of any person under Section 164 of the[CRLMP 3545 2020]Code even without the investigating officer moving forit then there is no good reason to limit the power toexceptional cases. We are unable to draw up a dividingline between witnesses whose statements are liable tobe recorded by the Magistrate on being approached forthat purpose and those not to be recorded. Thecontention that there may be instances when theinvestigating officer would be disinclined to recordstatements of willing witnesses and therefore suchwitnesses must have a remedy to have their versionregarding a case put on record is no answer to thequestion whether any intending witness canstraightaway approach a Magistrate for recording hisstatement under Section 164 of the Code. Even forsuch witnesses provisions are available in law e.g. theaccused can cite them as defence witnesses duringtrial or the court can be requested to summon themunder Section 311 of the Code. When such remediesare available to witnesseswe do not find any specialreason why the Magistrate should be burdened withthe additional task of recording the statements of alland sundry who may knock at the door of the courtwith a request to record their statements underSection 164 of the Code.23. On the other hand if door is opened to suchpersons to get in and if the Magistrates are put underthe obligation to record their statements then toomany persons sponsored by culprits might throngbefore the portals of the Magistrate courts for thepurpose of creating record in advance for the purposeof helping the culprits. In the present case one of thearguments advanced by accused for grant of bail tothem was based on the statements of the fourappellants recorded by the Magistrate under Section164 of the Code. It is not part of the investigation toopen up such a vista nor can such step be deemednecessary for the administration of justice.24. Thus on a consideration of various aspects we are disinclined to interpret Section 164(1) of theCode as empowering a magistrate to record thestatement of a person unsponsored by theinvestigating agency. The High Court has rightlydisallowed the statements of the four appellants toremain on record in this case. Of course the said[CRLMP 3545 2020]course will be without prejudice to their evidence beingadduced during trial if any of the parties requires it.”16.Thus in clear terms the Supreme Court has held thatMagistrate does not have the power to record the statement of aperson unsponsored by the Investigating Agency. In other words it has empowered only the Investigating Agency to move anappropriate application for recording the statement of anywitnesses. The submission of the learned counsel for the petitioneris that the Apex Court was not considering the aspect regardingthe statement being wished to be recorded of complainant victimbeing not considered is an argument noticed to be rejected. Apresumption has to be drawn that the Apex Court while layingdown the law would apply in all the circumstances and therefore inview of the aforesaid judgment I am disinclined to accept thepresent petition and reject the same.17.With the aforesaid observations the criminal misc. petition isaccordingly dismissed.18.All pending applications shall also stand disposed of.(SANJEEV PRAKASH SHARMA) JKaran Bhutani 531 25 |
Insolvency and Bankruptcy Code, 2016 has not excluded application of Section 4 to Section 24 of the Limitation Act, 1963: National Company Law Appellate Tribunal | Article 137 of the Limitation Act, 1963 defining a period of 3 years will be computed after considering Section 18 or 19 of the Limitation Act, 1963 with a fresh period of limitation in spite of the dates being after the date of NPA. This was held in Sanjay Lamba V. Union Bank of India and Ors [Company Appeal (AT) (Insolvency) No. 276 of 2020] in the National Company Law Appellate Tribunal, Principal Bench, New Delhi by a bench consisting of Justice Bansi Lal Bhat and Dr. Ashok Kumar Mishra, Technical Member. Facts are that The present appeal is filed by the Appellant U/S.61 of IBC, 2016 against the order of the NCLT which had admitted the petition filed under Section 7(5) of the Code r/w Rule 4 of the IBBI Rules, 2016 on the Application filed by Financial Creditor -Corporation Bank, New Delhi. The counsel for the appellant contended that they have paid an amount of Rs.8,22,28,000/- towards one-time Settlement out of Settlement Amount of Rs. 67 Crore. The Appellant is willing to pay the entire amount by 31.05.2020 which was not accepted by the Bank. They stated that the Banks are moving in forum shopping and also online auction under Section 13(4) of the SARFAESI ACT. He had further submitted that the date of default being NPA date is 30.09.2016 and the Petition was filed on 22.11.2019 is clearly barred by limitation and thus the order needs to be set aside. The court made reference to the judgement of the Apex court in, a. Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd and Anr., wherein it was held that “There is no specific period of limitation prescribed in the Limitation Act, 1963 for an application under the IBC before the NCLT. An application for which no period of limitation is provided anywhere else in the Schedule is governed by Article 137 of the Schedule to the Limitation Act. Under Article 137 of the Schedule to the Limitation Act, the period of limitation prescribed for such an application is three years from the date of accrual of the right to apply.” The court also made reference to the Supreme Court judgement in Laxmi Pat Surana Vs. Union Bank of India & Anr. where in the following observations were made, “It has been made amply clear that right to initiate action within 3 years from such acknowledgment of debt accrues to the Financial Creditor. However, needs to be exercised within 3 years when the right to sue/apply accrues as per Article 137 of the Limitation Act. This is the effect of Section 18 of the Limitation Act, in that a fresh period of limitation is required to be computed from the time when the acknowledgment was so signed by the principal borrower or corporate guarantor as the case may be.” | NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Insolvency) No. 2720 In the matter of: Sanjay Lamba Ex Managing Director 107 Bharat Chambers 70 Scindia House New Delhi 110001 1. Union Bank of India Through chief manager C 34 3rd Floor DDA Office Cum Shopping Complex Opposite Moolchand hospital Lajpat Nagar New Delhi 1100024 2. Shri. Pawan Trivedi CA IRP Through M s. Sainov Spirits Pvt Ltd J 1001 Park View City I Sohan Road Sector 48 Gurugram 122018Respondent No.1 ….Respondent No.2 For Appellant: Mr. Arun Kathpalia Sr. Advocate with Ms. Sowmya Sai kumar Mr. Upinder Singh and Mr. Ankush Chattopadhyay Advocates. For Respondents: Mr. Vivek Kohli Sr. Advocate with Ms. Malvika Jain and Ms. Somyashree Advocates for R 1. Mr. Sandeep Bhuraria and Mr. Aman Anand Advocates for R 2. Mr. Pawan Trivedi RP. J U D G E M E N T DR. ASHOK KUMAR MISHRA TECHNICAL MEMBER. 1. The present appeal is filed by the Appellant Sanjay Lamba under Section 61 of the Insolvency and Bankruptcy Code 2016 against the Impugned order dated 05.02.2020 passed by the Adjudicating Authority in (3383 2019). The Adjudicating Authority has admitted the petition filed under Section 7(5) of the Code r w Rule 4 of Company Appeal(Insolvency) No. 2720 the IBBI Rules 2016 on the Application filed by Financial Creditor Corporation Bank New Delhi. The Adjudicating Authority has observed that the total amount involved in default is Rs. 70 34 19 678.23 and the account of the Corporate Debtor was classified as a Non Performing Asseton 30.09.2016. They have also categorically mentioned that the Corporate Debtor has failed to give cogent reasons as to why CIRP shall not be triggered against it. Subsequent to the filing of the present appeal the Appellant has filed Interlocutory ApplicationNo. 15020 informing the Tribunal that there has been certain development necessitating the filing of the IA. The Govt. of India vide Gazette Notification dated 04.03.2020 amalgamated Andhra Bank and Corporation Bank Transferor Bank) into Union Bank of India(for short ‘ Bank’) and the same was allowed by this Appellate Tribunal vide its order dated 16.07.2020. 2. The Appellant is the member of the suspended Board of Directors of the Corporate Debtor M s. Sainov Spirits Pvt. Ltd. The Appellant has taken various facilities from the Respondent Bank vide sanction letter dated 01.01.2011 29.12.2012 etc. involving cash credit facility term loan facility Ad hoc working capital limit etc. and the amount is in default mentioned as above. The Appellant has stated that they have paid over Rs.700 Crore as excise duty in 2019 and Rs.800 Crore plus as excise duty in 2018. They have also stated that 1000 families are dependent on the Corporate Debtor. They have also stated that an OTS Company Appeal(Insolvency) No. 2720 Settlement was arrived at between the Respondent bank and Corporate Debtor on 11.06.2019 and they have paid an amount of Rs.8 22 28 000 towards one time Settlement out of Settlement Amount of Rs. 67 Crore. The Appellant is willing to pay the entire amount by 31.05.2020 which was not accepted by the Bank. They have also stated that the Banks are moving in forum shopping and also online auction under Section 13(4) of the SARFAESI ACT. 3. The Appellant has further submitted that the date of default being NPA date is 30.09.2016 and the Petition was filed on 22.11.2019 and the same is clearly barred by limitation as it has been filed more than three years after the default has occurred and thus the impugned order needs to be set aside. They have supplemented it with the following citations: a. BK Educational Services Pvt Ltd. Vs. Parag Gupta11 SCC 633 b. Gaurav Harigovindbhai Dave Vs. ARCLtd 10 SCC 572 c. Jignesh Shah & Ar. V. Union of India & Anr.10 SCC 750 d. Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd and Anr.(Ins) No. f. State bank of India Vs. Krishidhan Seeds Pvt. Ltd (Ins) No. 9720 g. Jagdish Prasad Sharda Vs. Allahabad BankIns) No. 1820 Company Appeal(Insolvency) No. 2720 h. V.Padmakumar Vs. Stressed Assets Stabilization Fund& Anr. Company Appeal(Ins) No. 520 i. Bishal Jaiswal Vs. ARCLtd. & Anr. Company Appeal(Ins) No. 3820. 4. It has also been mentioned by the Appellant that revival letter and OTS Proposal cannot shift the date of default and so also payments made by the Appellant cannot extend limitation. The Appellant is accepting that they have made an offer around April 2019 and made a payment of Rs. 8.3 Crore between 13.05.2019 to 16.07.2019 and subsequently the OTS was cancelled by the Bank on 15.11.2019. They have also stated that Balance Sheets cannot be treated as acknowledgment of debt as held by this Tribunal in V.Padmakumar Vs. Stressed Assets Stabilization Fund& Anr. Company Appeal(Ins) No. 520. They have also placed reliance on RBI Master Circular to submit that once an account become NPA the date of default cannot be shifted. 5. However Respondent No.1 Bank Financial Creditor is still affirming in their Petition before the Adjudicating Authority that the date of default NPA date is 30.09.2016. They have also stated that the Corporate Debtor on account of continuous default issued revival letter dated 21.06.2017 wherein they have categorically acknowledged for the purpose of Section 18 of the Indian Limitation Act 1963 and the Corporate Debtor has given multiple letters dated 22.04.2019 26.04.2019 and 12.06.2019 proposing one time settlement offer and the bank has finally agreed for a settlement at Rs. 67 Crore towards the settlement its debt and liabilities vide its letters of June 2019. All this Company Appeal(Insolvency) No. 2720 amounts to acknowledgment of liability as provided under Section 18 of the Limitation Act. 6. The Bank Financial Creditor has further stated that they have received a part payment of Rs. 8.28 Crore towards its debt and obligations between May 2019 to July 2019. They have also stated that they meet the criteria of Section 19 of the Limitation Act for computation of a fresh period of limitation from the date of such payments. They have also stated that Reserve Bank of India master circular prudential norms Reserve Bank of India Prudential Framework for Resolution Of RBI 2018 19 203 45 21 04.048 2019 19 dated 07.06.2019 which highlight framework classification norms of NPA subsequent to default: ‘Default’ means non payment of debt and after 90 days the default get converted into “NPA”. They have also stated that default can occur on multiple dates and categorization of the accounts would be termed as a sub standard. The NPA categorization is only done when the default continues beyond 90 days and the same can be upgraded only when all out standing in the said loan accounts performed satisfactorily. Therefore the date of default would shift the eventuality of default the borrower committing in payment of money due to the lender bank in terms of Resolution Plan one time Settlement or corporate debt restructuring etc. Based on above submissions the Respondent Financial Creditor submitted to dismiss the present appeal and uphold the impugned order of Adjudicating Authority dated 05.02.2020. Company Appeal(Insolvency) No. 2720 7. Apart from the above stated judgment we have the privilege to go through the following two judgments of Hon’ble Apex Court as mentioned below which have been delivered in the last week of March a. Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Co operative Bank Ltd and Anr. in Civil Appeal No. 9198 of 2019 delivered on b. Laxmi Pat Surana Vs. Union Bank of India & Anr. In Civil Appeal No. 27320 delivered on 26.03.2021. In case of Laxmi Pat Suranathe specific question raised was whether an application under Section 7 of the Code filed after 3 years from the date of declaration of the loan account as NPA being the date of default is not barred by limitation. It has been made amply clear that right to initiate action within 3 years from such acknowledgement of debt accrues to the Financial Creditor. However needs to be exercise within 3 years when the right to sue apply accrues as per Article 137 of the Limitation Act. This is the affect of Section 18 of the Limitation Act in that a fresh period of limitation is required to be computed from the time when the acknowledgment was so signed by the principal borrower or corporate guarantor as the case may be. In respect of Sesh Nath Singh and Anr. certain extracts are given below for clarity on this subject: “48. The insolvency Committee of the Ministry of Corporate Affairs Government of India in a report published in March 2018 stated that the Company Appeal(Insolvency) No. 2720 intent of the IBC could not have been to give a new lease of life to debts which were already time barred. Thereafter Section 238A was incorporated in the IBC by the Insolvency and Bankruptcy CodeAct 2018with effect from 6th June 2018. Section 238A provides as follows: “238A. The provisions of the Limitation Act 1963shall as far as may be apply to the proceedings or appeals before the Adjudicating Authority the National Company Law Appellate Tribunal the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal as the case may be.” 49. The language and tenor of Section 238A is significant. The Section reads that the provisions of the Limitation Act 1963 shall as far as may be apply to proceedings or appeals inter alia before the NCLT NCLAT. 50. Section 238 gives overriding effect to the IBC notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 51. There is no specific period of limitation prescribed in the Limitation Act 1963 for an application under the IBC before the NCLT. An application for which no period of limitation is provided anywhere else in the Schedule is governed by Article 137 of the Schedule to the Limitation Act. Under Article 137 of the Schedule to the Limitation Act the period of limitation prescribed for such an application is three years from the date of accrual of the right to apply. 52. There can be no dispute with the proposition that the period of limitation for making an application under Section 7 or 9 of the IBC is three years from the date of accrual of the right to sue that is the date of default. In Gaurav Hargovindbhai Dave v. Asset Reconstruction CompanyLtd. And Anr. Company Appeal(Insolvency) No. 2720 6 this Court held: “6. …...The present case being “an application” which is filed under Section 7 would fall only within the residuary Article 137.” 53. Section 5 of the Limitation Act provides that 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 of limitation 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. The explanation in Section 5 of the Limitation Act clarifies that the fact that the appellant or the applicant may have been misled by any order practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 54. In B.K. Educational Services Private Limited v. Parag Gupta and Associates 7 this Court held: “42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code Article 137 of the Limitation Act gets attracted. “The right to sue” therefore accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application the application would be barred under Article 137 of the Limitation Act save and except in those cases where in the facts of the case Section 5 of the Limitation Act may be applied to condone the delay in filing such application.” 55. In Radha ExportPrivate Limited v. K.P. Jayaram and Anr. 8 this Court referred to B.K. Educational Services Ltd. v. Parag Gupta & Associatesand held the application under Section 7 of the IBC to be barred by limitation. Company Appeal(Insolvency) No. 2720 56. In Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Pvt. Ltd. and another 9 this Court held that limitation of three years as provided by Article 137 of the Limitation Act which commenced from the date of the default was extendable under Section 5 of the Limitation Act. 59. It is well settled by a plethora of judgments of this Court as also different High Courts and in particular the judgment of this Court in B.K. Educational Services Private Limited v. Parag Gupta Associates and Ors. the NCLT NCLAT has the discretion to entertain an application appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and or the application within the period prescribed by limitation. 66. Similarly under Section 18 of the Limitation Act an acknowledgement of present subsisting liability made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed has the effect of commencing of a fresh period of limitation from the date on which the acknowledgment is signed. However the acknowledgment must be made before the period of limitation expires. 67. As observed above Section 238A of the IBC makes the provisions of the Limitation Act as far as may be applicable to proceedings before the NCLT and the NCLAT. The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT NCLAT. All the provisions of the Limitation Act are applicable to proceedings in the NCLT NCLAT to the extent feasible.” 8. All this reflects that the Code has not excluded application of Section 4 to Section 24 of the Limitation Act 1963 while determining period of limitation and Section 29(2) of the Limitation Act appears to be Company Appeal(Insolvency) No. 2720 applicable. Hence Section 18 & 19 of the Limitation Act 1963 is applicable to the Code. For clarity Section 18 19 and Section 29 of The Limitation Act 1963 is reproduced below for ease of convenience: “Section 18 Effect of acknowledgment in writing.— 1) Where before the expiration of the prescribed period for a suit or application in respect of any property or right an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by any person through whom he derives his title or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. 2) Where the writing containing the acknowledgment is undated oral evidence may be given of the time when it was signed but subject to the provisions of the Indian Evidence Act 1872oral evidence of its contents shall not be received. Explanation.—For the purposes of this section — a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right or avers that the time for payment delivery performance or enjoyment has not yet come or is accompanied by a refusal to pay deliver perform or permit to enjoy or is coupled with a claim to set off or is addressed to a person other than a person entitled to the property or right b) the word “signed” means signed either personally or by an agent duly authorised in this behalf and c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. Section 19. Effect of payment on account of debt or of interest on legacy.—Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy Company Appeal(Insolvency) No. 2720 or by his agent duly authorised in this behalf a fresh period of limitation shall be computed from the time when the payment was made: Provided that save in the case of payment of interest made before the 1st day of January 1928 an acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making the payment. Explanation.—For the purposes of this section — a) where mortgaged land is in the possession of the mortgagee the receipt of the rent or produce of such land shall be deemed to be a payment b) “debt” does not include money payable under a decree or order of a court. Section 29. Savings.— of 1872). 1) 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. Save as otherwise provided in any law for the time being in force with respect to marriage and divorce nothing in this Act shall apply to any suit or other proceeding under any such law. 4) Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act 1882 82) may for the time being extend.” Company Appeal(Insolvency) No. 2720 9. After going through the various submissions and the recently judgments delivered by the Hon’ble Apex Court a clarity has come that Article 137 of the Limitation Act 1963 defining a period of 3 years will be computed after considering Section 18 or 19 of The Limitation Act 1963 with a fresh period of limitation inspite of these dates being after the date of NPA. In view of the aforesaid submission and the Appellant acknowledging the debt on 21.06.2017 itself shifts the 3 years period to June 2020 whereas the Application before the Adjudicating Authority itself is filed on 22.11.2019. If we consider the part payment which has been made between May 2019 to June July 2019 then naturally the application has been filed within a period of 3 years. Hence we do not find any merit in this appeal based on law laid down and hence the appeal deserves to be dismissed and is dismissed. Pending application if any stands disposed of. No order as to costs. Justice Bansi Lal Bhat] Acting Chairperson Dr. Ashok Kumar Mishra] Member08th April 2021 New Delhi Company Appeal(Insolvency) No. 2720 |
Quantity of substance falls within “such factors as it may deem fit” under S.32B NDPS Act, while imposing the sentence higher than the minimum: Supreme Court | On an appeal regarding the punishment under section 21 of NDPS Act, 1985 where the Special Court and High Court award 20 years of R.I, the supreme court held that the reasons for giving more than the minimum stipulated punishment is not restricted to section 32B and the quantity of the substance is a determining factor. This judgment was passed in the case of Gurudev Singh vs. State of Punjab [Cr.A.No.375/2021], by a Double Bench consisting of Hon’ble Justice D.Y. Chandrachud, and Hon’ble Justice M.R. Shah. The present appeal was preferred against the impugned judgment of the High Court of Punjab and Haryana where the court upheld the conviction of the accused and sentence passed for the office punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) by the Special Court with 15 years of Rigorous imprisonment and rs. 2 lakhs of fine. The supreme court clarified that it would only address the issue regarding the question of a sentence of 15 years R.I. with fine of Rs.2 Lakhs and in default to undergo a further one year R.I. will be considered. The counsel for the appellant submitted that the minimum punishment was 10 years under section 21 of the Act the factors mentioned under section 32B of the Act have to be taken into consideration to increase the imprisonment. The appellant contended that these reasons were not mentioned in the high court order or the special court order while increasing the punishment. The respondent opposing the same contended that the accused was found with 1kg heroin which was 4 times greater than the commercial quantity. They also contended that the reasons for the increase in punishment cannot be restricted or limited to the reasons under section 32B of the Act. The supreme court heard both party’s contention before giving its observation and judgment. The Court observed that under section 21 of the Act the minimum punishment would be 10 years and may extend to 20 years. Further, while section 32B of the Act provided for factors that the court should take into consideration while increasing the punishment the section also provides that the reasons for increasing the punishment need not be restricted or limited to those mentioned within it. The court held in the case referred to by the appellants themselves, it was decided, the quantity of the substance with which the accused is charged is a relevant factor, which can be taken into consideration while fixing the quantum of punishment. The supreme court held that the quantity of substance would fall into “such factors as it may deem fit” and while imposing the sentence higher than the minimum, if the Court took into consideration such factor of larger/higher quantity, it cannot be said that the Court committed an error. While the court was addressing the contention that punishment under section 21 restricts personal liberty, It was held that the objective of the NDPS act was to give more stringent punishments since the previous sanctions were not sufficient and the various types of drugs kept evolving with time. | REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 375 OF 2021 STATE OF PUNJAB .. Respondent JUDGMENT M. R. Shah J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.11.2019 passed by the High Court of Punjab and Haryana at Chandigarh in CRA DB No.3118 by which the High Court has dismissed the said appeal preferred by the appellant herein original accused and has confirmed the judgment and order of conviction and sentence passed by the Learned Special Court convicting the accused for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985and sentenced the accused to undergo 15 years R.I. and to pay a fine of Rs.2 Lakhs and in default of payment of fine to further undergo one year R.I. original accused has preferred the present appeal. At the outset it is required to be noted that vide earlier order dated 16.12.2020 this Court has refused to interfere with the conviction of the appellant for an offence punishable under Section 21 of the Act however has issued notice confined to the question of sentence Therefore in the present appeal the question of sentence of 15 years R.I. with fine of Rs.2 Lakhs and in default to undergo further one year R.I. only is required to be considered. Learned Counsel appearing on behalf of the appellant has vehemently submitted that the minimum punishment sentence which is provided in Section 21 of the Act is 10 years. It is submitted that as per Section 32B of the Act where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under the Act the Court may in addition to such factors as it may deem fit take into account the factors which are mentioned in Section 32B for imposing a punishment higher than the term of imprisonment or amount of fine. It is submitted that therefore by imposing the punishment higher than the minimum term of imprisonment i.e. in the present case 15 years R.I. the Court has to take into consideration the factors mentioned in Section 32B of the Act and has to assign the reasons while imposing the punishment higher than the minimum term of imprisonment. It is submitted that in the present case while imposing a punishment of 15 years R.I. which is admittedly higher than the minimum term of imprisonment of 10 years R.I. neither the Special Court nor the High Court have assigned any reasons taking into account the factors mentioned in Section 32B of the Act It is submitted that the appellant is the first time convict and is a poor person and was only a carrier. It is further submitted by Learned Counsel for the appellant accused that in the present case the main supplier of the narcotic substance has not been apprehended arrested and the appellant accused being a carrier sentence higher than the minimum provided under the Act is not warranted. It is submitted that factors contained in clauses to of Section 32B have not been considered by the Learned Special Court while imposing a sentence higher than the minimum sentence. 3.2 For the aforesaid some of the observations made by this Court in para 23 of the decision in the case of Rafiq Qureshi vs. Narcotic Control Bureau Eastern Zonal Unit 6 SCC 492 has been Learned Counsel appearing on behalf of the appellant original accused has further submitted that in the case of Rafiq Qureshi Supra) this Court has reduced the sentence of 16 years to 12 years in a case where the accused was found to be in possession of narcotic drugs which was much higher than the commercial quantity i.e. 609.6 gm as per the analysis report Learned Counsel appearing on behalf of the appellant accused has further submitted that this Hon’ble Court has time and again held that awarding of adequate sentence is a question of personal liberty protected by Article 21 of the Constitution of India and there is a requirement of giving due weightage to mitigating and aggravating circumstances. Reliance is placed on the decisions of this Court in the case of Soman vs. State of Kerala 11 SCC 382 and State of Haryana vs. Asha Devi 8 SCC 39. It is submitted that in the present case mitigating circumstances are thatappellant is a poor man and only bread winner of the family Trial Court found that the appellant should be dealt with leniently while considering the question of sentence appellant was merely a carrier and the main accused Malkit Singh was never arrested and in fact no fruitful efforts were made to arrest him the appellant is the first time convict under the Act and there is no pending case against the appellant under the Act and no special factors as stated in Section 32Btoare present in the facts and circumstances of the present case. It is submitted that against the above mitigating circumstances the aggravating circumstances areit is observed and held that the quantity of the narcotic substance recovered may be a relevant factor to impose punishment higher than the minimum and thus quantity of substance with which accused is charged is a relevant factor which can be taken into consideration while fixing quantum of punishment. It is further observed and held that a decision to impose a punishment higher than the minimum is not confined or limited to the factors as enumerated in clausestoof Section 32B and the Court’s discretion to consider such factors as it may deem fit is not taken away or tinkered. It is submitted that in the aforesaid case though it was found that the court has not adverted to the factors mentioned in clausestoof Section 32B of the Act considering the fact that quantity of manufactured drug being much much higher than the minimum commercial quantity this Court refused to interfere with the order passed by the Learned Special Court and the High Court imposing the sentence imprisonment higher than the minimum imprisonment mentioned in Section 21 of the Act. It is submitted that in that case on facts the accused was found to be a carrier and therefore this Court reduced the imprisonment from 16 years to 12 years R.I. It is submitted that in the present case the accused was found to be in possession of huge quantity of heroin i.e. 1 kg and was found to be selling narcotic substance drugs the sentence imprisonment imposed by the Learned Trial Court confirmed by the High Court of 15 years R.I. with fine of Rs.2 Lakhs is not required to be interfered with Heard the Learned Counsel for the respective parties at length As observed hereinabove in the present case the appellant original accused was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity. 250 gm and above of Narcotic substance drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned it may be upto 20 years R.I. Therefore the minimum sentence for commercial quantity shall not be less than 10 years which may extend to 20 years with fine which shall not be less than Rs.1 lakh but which may extend to Rs.2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than the minimum punishment. Section 32B of the Act reads as under “[32B. Factors to be taken into account for imposing higher than the minimum punishment.— Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act the court may in addition to such factors as it may deem fit take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine namely:— a) the use or threat of use of violence or arms by the offender b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational sports and social activities e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence andtoof Section 32B. It is further observed and held that quantity of the substance with which accused is charged is a relevant factor which can be taken into consideration while fixing the quantum of punishment. In paragraph 15.1 to 16 and 18 it is observed and held as under: “15.1 The court may where minimum term of punishment is prescribed take into consideration such factors as it may deem fit for imposing a punishment higher than the minimum term of imprisonment or fine 15.2 In addition take into account the factors for imposing a punishment higher than the minimum as enumerated in clausetotohas to be not less than ten years which may extend to twenty years. But suppose the quantity of manufactured drug is 20 time of the commercial quantity it may be a relevant factor to impose punishment higher than minimum. Thus quantity of substance with which an accused is charged is a relevant factor which can be taken into consideration while fixing quantum of the punishment. Clausesas enumerated in Section 32B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted the said factor is relevant factor and the Court cannot be said to have committed an error when taking into consideration any such factor higher than the minimum term of punishment is awarded. … … … 18. The specific words used in Section 32B that Court may in addition to such factors as it may deem fit clearly indicates that Courts discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clausestoof Section 6.1 Therefore quantity of substance would fall into “such factors as it may deem fit” and while exercising its discretion of imposing the sentence imprisonment higher than the minimum if the Court has taken into consideration such factor of larger higher quantity of substance it cannot be said that the Court has committed an error. The Court has a wide discretion to impose the sentence imprisonment ranging between 10 years to 20 years and while imposing such sentence imprisonment in addition the Court may also take into consideration other factors as enumerated in Section 32B to to the High Court has to only consider whether “such factor” is a relevant factor or not 6.2 Applying the aforesaid principles of law to the facts of the case on hand it is required to be considered whether in the facts and circumstances of the case the sentence of 15 years R.I. with fine of Rs.2 Lakhs imposed by the Learned Special Court and confirmed by the High Court require interference by this Court While considering the request made on behalf of the accused to award lesser punishment and to take lenient view while sentencing him the Special Court in fact has taken into consideration the relevant facts factors while not imposing the maximum punishment of 20 years R.I. and awarding the sentence of 15 years R.I. Therefore as such it cannot be said that the Special Court has not at all applied its mind while awarding the sentence. 6.3 Submission on behalf of the accused that the main supplier has not been apprehended arrested and the appellant is a carrier only cannot be a ground to interfere with the sentence imposed by the Learned Special Court confirmed by the High Court. In most of the cases the main supplier who may be from outside country may not be apprehended and or arrested. Once the accused is found to be in illegal possession of the narcotic substance drugs if in the circumstances so warranted can be awarded the sentence higher than the minimum prescribed provided under the Act In the present case the appellant accused was found to be in possession of 1 kg heroin and he sold it to the informant. Therefore he cannot be said to be a mere carrier. In given case even a carrier who is having the knowledge that he is carrying with him narcotic substance drugs and is found to be with huge commercial quantity of narcotic substance drugs can be awarded the sentence higher than the minimum sentence provided under the Act. In the present case as observed hereinabove the accused was found to be in possession of 1 kg heroin and the minimum commercial quantity is 250 gm. Therefore the accused was found to be in possession of 4 times higher than the minimum commercial quantity and therefore the sentence imposed by the Learned Special Court imposing the sentence of 15 years R.I. with fine of Rs.2 lakhs confirmed by the High Court is not required to be interfered with by this Court. It cannot be said that while imposing such punishment the Court has taken into consideration any irrelevant Now so far as the submission on behalf of the accused that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and or warranted is concerned at the outset it is required to be noted that the appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more higher than the commercial quantity. At this stage the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act 1857 b) the Opium Act 1878 and The Dangerous Drugs Act 1930 However with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found thatThe scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well organized gangs of smugglers The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case the accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable it cause deleterious effects and deadly impact on the society they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore it has a deadly impact on the society as a whole. Therefore while awarding the sentence punishment in case of NDPS Act the interest of the society as a whole is also required to be taken in consideration. Therefore while striking balance between the mitigating and aggravating circumstances public interest impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore merely because the accused is a poor man and or a carrier and or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence punishment in the case of NDPS Act. Even otherwise in the present case the Special Court as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person that he is sole bread earner that it is his first offence while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only In view of the above and for the reasons stated hereinabove there is no substance in the present appeal and the same deserves to be dismissed and is accordingly dismissed [Dr Dhananjaya Y Chandrachud [M R Shah New Delhi April 6 2021 |
A mistakenly proceeded process of application or grant cannot be countenanced in law as conferring any right in favour of applicant: High Court of Delhi | A mistakenly proceeded to process the application or grant by Department of Government/ Autonomous body, cannot result in any principle of estoppel operating against them nor can such an act be countenanced in law as conferring any right upon the applicant or otherwise be recognized as a circumstance operating in applicant’s favour. Even if the allotment is not an outcome of fraud but came to be mistakenly made in favour of the applicant, it cannot confer any positive rights on the petitioner. These were stated by High Court of Delhi consisting, Justice Yashwant Verma in the case of Suresh Kumar vs. Sports Authority of India & Anr. [W.P.(C) 10466/2019] on 11.01.2022. The facts of the case are that the respondents cancelled the allotment of the General Pool Residential Accommodation (GPRA) that was occupied by the petitioner. Consequential directions for his eviction were also framed. The respondents conveyed their decision to refuse the prayer for regularization as made by the petitioner. Undisputedly, the accommodation in question formed part of premises falling in the GPRA pool of the respondents. The petitioner was appointed as a Lifeguard with the Sports Authority of India. It is his case that pursuant to the application made by him, the Directorate of Estate allotted him the premises in question. It is also borne out from the record that the deductions towards rent and other statutory dues payable in respect of the premises were initially deducted from the salary of the petitioner by the respondent and duly transmitted. However, it is apparent from the record that the deductions after a particular period of time were not deposited after it was found that the original allotment that was made was actually invalid. The respondents are the employees of the SAI, which is an autonomous body and therefore, should not be eligible for allotment of premises forming part of the GPRA. The learned Counsel for the petitioner submitted that the application for allotment was validly made and since it was duly scrutinized and accepted by the respondents, it cannot now be challenged by them or questioned in the present proceedings. He contended that once the respondent made the necessary deductions from the salary of the petitioner, no further penal action can be warranted since no wrongdoing could have possibly been fastened upon the petitioner here. It was further submitted that the respondents cannot attack their own orders which were passed in favour of the petitioner, collaterally in these proceedings. The learned Counsel for the respondent submitted that since SAI is an autonomous body, its employees are ineligible to be granted or allotted accommodation under the GPRA but once SAI was apprised that the allotment was illegal and invalid, it stopped remitting the license fee which was deducted. According to the respondent, since application was uploaded from the official portal of that Ministry, it was in the aforesaid backdrop that the same came to be duly acknowledged and the allotment made. It was further submitted that upon verification of their GAMS records, it was revealed that the petitioner uploaded the application by misusing the admin ID of an officer posted in the Ministry of Youth Affairs and Sports. In view of the aforesaid facts, the respondents asserted that the allotment made in favour of the petitioner was rightly cancelled. The High Court of Delhi held that employees of the SAI are not eligible for being allotted premises which form part of the GPRA. The allegation of the respondents that the portal of the Ministry of Youth Affairs and Sports was utilized for the purposes of uploading the application were also not been traversed nor established to be incorrect by the petitioner here. In the view of Court, the mere fact that the Department of Estates mistakenly proceeded to process the application and grant the allotment, cannot result in any principle of estoppel operating against the respondents nor can such an act be countenanced in law as conferring any right upon the petitioner or otherwise be recognized as a circumstance operating in his favour. Even if the allotment were not an outcome of fraud but came to be mistakenly made in favour of the petitioner, that in the considered view of this Court cannot confer any positive rights on the petitioner. Therefore, the Court found no merit in the challenge raised in the present writ petition, thus, the pending applications were dismissed. | IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10466 2019 CM APPLs. 43279 2019 50759 2019 Date of decision: 11 January 2022 SURESH KUMAR ..... Petitioner Through: Mr.Avneesh Arputham Adv. SPORTS AUTHORITY OF INDIA AND ANR. Respondents Through: Mr.Sanjib Kumar Mohanty and Mr.Shashank Advs. Mr.Awadhesh Kumar Singh Advs. for UOI. HON BLE MR. JUSTICE YASHWANT VARMA YASHWANT VARMA J.The challenge in the present writ petition is to the orders of 12 April 2019 and 18 September 2019. In terms of the first order of 12 April 2019 the respondents have proceeded to cancel the allotment of the General Pool Residential Accommodation1being occupied by the petitioner here. Consequential directions for his eviction were also framed. By the second order of 18 September 2019 the respondents have conveyed their decision to refuse the prayer for regularization as made by the petitioner here. Undisputedly the accommodation in question forms part of premises falling in the GPRA pool of the respondents. The petitioner was appointed as a Lifeguard with the Sports Authority of India2 respondent No.1 here. 1 GPRA 2 SAI W.P.(C) 10466 2019 It is his case that pursuant to an application which was made by him the Directorate of Estate by an order of 29 April 2015 allotted the premises in question. It is also borne out from the record that the deductions towards rent and other statutory dues payable in respect of the premises were initially deducted from the salary of the petitioner by the respondent No.1 and duly transmitted. However and is apparent from the record the deductions after a particular period of time could not be deposited by the SAI consequent to it being found that the original allotment as made was invalid. The respondents essentially take the position that employees of the SAI which is an autonomous body would not be eligible for allotment of premises forming part of the GPRA. The notice which came to be issued and pursuant to which the proceedings impugned commenced proceeded on the premise that the petitioner has failed to make deposits of license fee on the online portal of the Department of Estates. It further records that the license fee has not been uploaded by the DDO on the website of the Directorate of Estates so as to establish the eligibility of the petitioner to be allotted the accommodation. Ultimately and pursuant to the notice which had been issued the Estate Officer proceeded to pass the impugned order of 12 April 2019 noting that the petitioner was an unauthorized occupant in the public premises. The challenge to the aforesaid orders is addressed by Mr.Arputham learned counsel for the petitioner who submits that the application for allotment had been validly made and since it was duly scrutinized and accepted by the respondents it cannot now be challenged by them or W.P.(C) 10466 2019 questioned in the present proceedings. According to Mr.Arputham once the respondent No.1had made the necessary deductions from the salary of the petitioner no further penal action was warranted since no wrongdoing could have possibly been fastened upon the petitioner here. Referring to the decision of the Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner3 learned counsel also submitted that the grounds which are now taken in the counter affidavit cannot possibly be countenanced or be read against the petitioner since the notice rested solely on the allegation of non payment of license fee. It was further submitted that the respondents cannot attack their own orders which were passed in favour of the petitioner collaterally in these proceedings. Mr. Arputham relies upon the decision of the Supreme Court in State of Assam vs. Raghava Rajgopalachari4 and of the Calcutta High Court in Calcutta Municipal Corp. vs. Debu Bhatacharjee5 in support of the afore noted contention. Before this Court learned counsel appearing for the respondent No.1 has candidly admitted that since SAI is an autonomous body its employees are ineligible to be granted or allotted accommodation under the GPRA. Learned counsel further submitted that once SAI was apprised that the allotment was illegal and invalid it had stopped remitting the license fee which was being deducted. The Department of Estates has filed an affidavit in these proceedings and from which the following position 31 SCC 405 47 SLR 4452 CLJ 1 W.P.(C) 10466 2019 emerges. It is averred by the respondents that SAI employees are not entitled to allotment of premises falling in the GPRA. The proceedings against the petitioner according to the said respondent came to be initiated upon receipt of a complaint of 17 December 2018 which had alleged that the petitioner here had uploaded the application for allotment by misusing the office ID of an Under Secretary in the Ministry of Youth Affairs and Sports. According to the said respondent since that application had been uploaded from the official portal of that Ministry it was in the aforesaid backdrop that the same came to be duly acknowledged and the allotment made. The respondents in paragraph 6 of the affidavit have further submitted that upon verification of their GAMS records it was revealed that the petitioner uploaded the application by misusing the admin ID of an officer posted in the Ministry of Youth Affairs and Sports. They further record that the license fee details were never updated by the DDO from the date of allotment as is mandatorily required and it was in that background that the allotment was ultimately cancelled. They further disclose that upon further enquires it has come to light that the petitioner’s application and the signed DE 2 forms were also not available in the concerned Ministry. In view of the aforesaid facts the respondents assert that the allotment made in favour of the petitioner has been rightly cancelled. Having heard learned counsel for parties the Court notes that it is the admitted position of parties that employees of the SAI are not eligible for being allotted premises which form part of the GPRA. The allegation of the respondents that the portal of the Ministry of Youth Affairs and Sports was utilized for the purposes of uploading the application has also not been W.P.(C) 10466 2019 traversed nor established to be incorrect by the petitioner here. It becomes pertinent to note that these allegations as levelled by the respondents were not even questioned or assailed by learned counsel for the petitioner in the course of his oral submissions. The affidavits tendered by the petitioner in these proceedings also fails to explain how the petitioner came to upload the application by using the portal ID of an officer attached in the concerned Ministry. It thus leads the Court to necessarily hold that the petitioner illegally utilized the portal of the Ministry of Youth Affairs and Sports and uploaded the application for allotment which ultimately came to be considered and a consequential allotment order issued by the Department of Estates. In the considered view of this Court the mere fact that the Department of Estates mistakenly proceeded to process the application and grant the allotment cannot result in any principle of estoppel operating against the respondents nor can such an act be countenanced in law as conferring any right upon the petitioner or otherwise be recognized as a circumstance operating in his favour. It is evident that the portal of the concerned Ministry was not only misutilised but in fact accessed with the sole intent of misleading the respondents with regard to the eligibility of the petitioner. The aforesaid act appears to have been clearly motivated by the petitioner consciously seeking to suppress his ineligibility to be allotted a premises falling in the GPRA. The mere fact that certain license fee deductions were made by the SAI initially would also not come to the aid of the petitioner bearing in mind the fact that the allotment itself was invalid and incapable of being saved under the relevant provisions which apply. The second respondent W.P.(C) 10466 2019 illegal. has in terms of the affidavit filed in these proceedings apprised the Court that no online remittances towards license fee had been received from SAI since June 2015. The said respondent by its further communications of 15 July and 19 August 2019 directed the SAI to desist from making any further remittances upon it being discovered that the original allotment itself was The Court also notes that the respondents essentially take the position that they were misled into processing the application since it had come to be uploaded by usage of the portal of the Ministry of Youth Affairs and Sports. The stand as taken in these proceedings cannot possibly be viewed as being an act which amounts to them “attacking their own order” as learned counsel would choose to describe it. The principles which flow from the two decisions which are cited by learned counsel would come into play only in situations where an order validly made is sought to be questioned by the author itself. In the present case the stand of the respondents essentially is that the petitioner fraudulently obtained the allotment of the premises by using the portal of the concerned Ministry which led them to mistakenly make an allotment in favour of an employee the SAI who was otherwise to be allotted GPRA accommodation. Even if the allotment were not an outcome of fraud but came to be mistakenly made in favour of the petitioner that in the considered view of this Court cannot confer any positive rights on the petitioner. Viewed from whichever angle the action impugned cannot be characterized as being an attack on an order validly made by the W.P.(C) 10466 2019 respondents especially when the same rested on a patent error and was founded on the admitted ineligibility of the petitioner. The reliance placed by learned counsel on the decision of the Supreme Court in Mohinder Singh Gill is clearly misplaced for the following reasons. The proceedings came to be initiated by the respondents on the specific allegation that the license fee had not been deposited online to establish the eligibility of the petitioner to occupy the premises. While the SAI may have made deductions on earlier occasions that by itself would not inhere to the benefit of the petitioner bearing in mind the undisputed fact that the petitioner was wholly ineligible to be allotted the premises. The fact that the petitioner misused the portal and uploaded the application being fully aware of his ineligibility to be offered an allotment coupled with the finding of the Court that the same appears to have been done with deliberate intent clearly disentitles the petitioner to any equitable relief. A prerogative writ as contemplated by Article 226 of the Constitution will surely not issue where the same would result in the perpetuation of a manifest illegality. 10. Viewed in the aforesaid context and facts this Court finds no merit in the challenge raised in the present writ petition which consequently shall stand dismissed. The pending applications are also dismissed. YASHWANT VARMA J. JANUARAY 11 2022 bh W.P.(C) 10466 2019 |
Petitioner having no locus standi, can’t challenge the subject matter in the court: Delhi High Court | Petitioner having no locus standi, can’t challenge the subject matter in the court. The same was propounded in the recent joint matter of, wherein 6 separate writ petitions were filed in furtherance to the above, namely: The case was heard on September 10th 2021, and the proceedings were presided by a single judge bench, consisting of Justice Asha Menon. The comprehensive facts, pertinent to the case, are as follows. Petitioner, although not being a party to the suits, is aggrieved because according to him, that order by the former court affect his rights to the extent of 75% of the undivided share in the property bearing House No. 45, Arjun Nagar, New Delhi, without giving him an opportunity of being heard. Respondents No.2 to 5 had become owners of 25% undivided share each in the said property, having purchased the same through a registered Sale Deed. Whereas, they also had an oral agreement to further develop the property with stilt level parking. Further the parties had entered into some agreements to sell the said property. The agreements to sell were not registered as per the Registration Act, 1908. Subsequently, 3 of the respondents, also transferred 25% undivided share to petitioners. The petitioner by virtue of the transfer had 75 % undivided share in the suit property. The dispute arose in the pursuance of the above. The main grievance of the petitioner is that the plaintiff had entered into unregistered Agreements for transfer of one Flat but was now seeking restraint on the entire Suit Property. Secondly, without the petitioner being a party to the suits, his 75% share in the Suit Property was being adversely impacted. The counsel on the behalf of the both the sides cited various precedents like Hari Singh v. Sub Registrar (1998) 120 PLR 787; Gurjeet Singh Madaan v. SubRegistrar-IX (District South-West), 2013 SCC OnLine Del 3868; Hardev Singh v. Gurmail Singh, (2007) 2 SCC 404; T.G. Ashok Kumar v. Govindammal, (2010) 14 SCC 370. The court also placed its reliance on some of the crucial precedents involving the subject matter in Chandrika Singh v. Arvind Kumar Singh, (2006) 10 SCC 404; Radhakisan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi, (1961) 1 SCR 248 and Hiralal Agrawal v. Rampadarath Singh, (1969) 1 SCR 328. | IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 10th September 2021 CM30 2021 RAYRIKH SAGAR PUSHPA DEVI & ORS. CM32 2021 RAYRIKH SAGAR Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. Through: Mr. Surinder Singh Bhatia and Mr. Baldev Singh Adv. for R 1 Mr. Fahad Khan Adv. for R 3 & R 4 Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. MADHVI SHARMA & ORS. Through: Mr. Surinder Singh Bhatia and Mr. Baldev Singh Adv. for R 1 Mr. Fahad Khan Adv. for R 3 & R 4 CM43 2021 RAYRIKH SAGAR Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. MOHAN SWAROOP AGGARWAL & ORS. Through: Mr. Surinder Singh Bhatia and Mr. Baldev Singh Adv. for R 1 Mr. Fahad Khan Adv. for R 3 & R 4 CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 + CM45 2021 RAYRIKH SAGAR Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. NEETU SHARMA & ORS. CM50 2021 RAYRIKH SAGAR LALITESH & ORS. Through: Mr. Surinder Singh Bhatia and Mr. Baldev Singh Adv. for R 1 Mr. Fahad Khan Adv. for R 3 & R 4 Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. Through: Mr. Surinder Singh Bhatia and Mr. Baldev Singh Adv. for R 1 Mr. Fahad Khan Adv. for R 3 & R 4 CM51 2021 RAYRIKH SAGAR Through: Mr.Siddharth Yadav Sr. Adv. with Mr.Wasim Ashraf Adv. KRISHAN KUMAR AGGARWAL & ORS. Mr. Fahad Khan Adv. for R 3 & R 4 HON BLE MS. JUSTICE ASHA MENON CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 JUDGMENT VIA VIDEO CONFERENCING] These six petitions are being disposed of by this common order as the issues involved are materially the same. These petitions have been filed under Article 227 of the Constitution of India challenging the orders dated 25th September 2020 passed by the learned Additional District Judge Trial Court allowing the application under Order XXXIX Rules 1 & 2 CPC filed by each of the plaintiffs before it in CS DJ 119 2019 CS DJ 123 2019 CS DJ 122 2019 CS DJ 121 2019 CS DJ 124 2019 and CS DJ 120 2019 respectively who are the respective respondent No.1 in each of the petitions before this Court. It is to be noted that the petitioner herein is not a party to the suits. However he is aggrieved because according to him the impugned orders affect his rights to the extent of 75% of the undivided share in the property bearing House No. 45 Arjun Nagar New Delhi without giving him an opportunity of being heard. 4. Mr. Siddharth Yadav learned senior counsel for the petitioner submitted that respondents No.2 to 5 defendants No.1 to 4 had become owners of 25% undivided share each in the Suit Property having purchased the same vide registered Sale Deed dated 8th March 2018 placed on record as Annexure P 2. Amongst themselves respondents CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 No. 2 to 5 defendants No.1 to 4 entered into an oral agreement to develop the Suit Property in such a manner that after construction development the Suit Property would consist of stilt level for parking Ground Floor First Floor Second Floor and Third Floor. They further agreed that the Ground Floor shall belong to respondent No.2 defendant No.1 the First Floor to respondent No. 3 defendant No.2 the Second Floor to respondent No.4 defendant No.3 and the Third Floor to respondent No.5 defendant No.4. They were also free to sell their respective shares to any other third party without any hindrance or objection from the other respondents defendants. It was submitted that the suits were filed for Specific Performance of Agreements to Sell alleging that respondent No.2 defendant No.1 had transferred various flats to the plaintiffs in the suits being respondent No.1 in each of the present petitions. Claiming that he had been authorized by the other joint owners he entered into various Agreements as below: i) with the respondent No.1 plaintiff in CM(M) 30 2021 dated 22nd October 2017 agreeing to sell to her an Apartment on the left side of the third floor of the Suit Property ii) with the respondent No.1 plaintiff in CM(M) 32 2021 dated 15th November 2018 agreeing to sell to her an Apartment on the Upper Ground floor on the right side of the Suit Property iii) with the respondent No.1 plaintiff in CM(M) 43 2021 dated CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 03rd November 2017 agreeing to sell to him an Apartment on the back side on the ground floor of the Suit Property iv) with the respondent No.1 plaintiff in CM(M) 45 2021 dated 15th November 2018 agreeing to sell to her an Apartment on the right side of the third floor of the Suit Property v) with the respondent No.1 plaintiff in CM(M) 50 2021 dated 23rd October 2017 agreeing to sell to him an Apartment on the left side of the first floor of the Suit Property and vi) with the respondent No. 1 plaintiff in CM(M) 51 2021 dated 27th April 2018 agreeing to sell to him an Apartment on the Upper Ground floor of the Suit Property. These Agreements to Sell were not registered. Learned senior counsel for the petitioner therefore submitted that in the absence of registered documents the respondent No.1 plaintiff in each of the petitions had no right in the Suit Property. Subsequently through a registered Sale Deed dated 9th January 2019 respondent No.2 defendant No.1 transferred his undivided 25% share in the Suit Property in favour of respondent No.6 Shri Rambir Singh. Thus the respondent No.2 defendant No.1 was left with no rights or title in his 25% share in the Suit Property as it vested in respondent No.6 Shri Rambir Singh with effect from 9th January 2019. It was subsequently respondents No.4 and 5 defendants No.3 and 4 sold their 25% share each in the Suit CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 Property in favour of the petitioner vide registered Sale Deeds dated 28th August 2020. Further respondent No.6 Shri Rambir Singh also transferred the undivided 25% share transferred to him by respondent No.2 defendant No.1 to the present petitioner vide registered Sale Deed dated 11th September 2020. Thus while the respondent No.1 plaintiff in each of these petitions had no right title or interest in the Suit Property the petitioner had acquired 75% share in the Suit Property. In these circumstances the learned senior counsel for the petitioner submitted that the learned Trial Court erred in passing the impugned orders restraining the respondents No.2 to 5 defendants No.1 to 4 from creating third party interests in the Suit Property bearing House No.45 Arjun Nagar New Delhi having a plot area of 200 sq. yds while at the same time describing the Suit Property as “a Flat” out of several Flats in the Suit Property. 10. The learned senior counsel for the petitioner submitted that at best perhaps the respondent No.1 plaintiff in each of the petitions could claim a right to the respective flats in the Suit Property subject matter of the Agreements to Sell but that could only be against the respondent No.2 defendant No. 1. Learned senior counsel for the petitioner submitted that by means of these suits the respondent No.1 plaintiff in each of the petitions were seeking to fasten other defendants with the burden of compensating them as the respondent No.2 defendant No.1 was absconding. This was unfair and unjust as none of the other defendants were parties to the alleged Agreements to Sell. Thus it was prayed that the impugned orders be set aside. CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 11. In the second limb of his arguments learned senior counsel for the petitioner submitted that the impugned order could not be sustained as the law did not permit stay of registration of a document. It was contended that once documents were submitted to the Registrar he had no discretion left and had to register the documents. In these circumstances the request of the Registrar for an order of the court to stop him from registering the Sale Deeds in favour of the petitioner was improper and the grant of such an injunction by the learned Trial Court was also improper. Reliance has been placed on Hari Singh v. Sub Registrar120 PLR 787 and Gurjeet Singh Madaan v. Sub Registrar IX 2013 SCC OnLine Del 3868. According to learned senior counsel for the petitioner the documents had in fact been already registered as evidenced from Annexures P 15 P 16 and P 17. 12. Learned senior counsel for the petitioner submitted that the principle of lis pendens would apply to the petitioner only on his being made a party to the suit. It was submitted that Section 52 of the Transfer of Property Act 1882 did not render a transfer of property during the pendency of the suit void. It only provides that the purchaser would be bound by the decree. Reliance has been placed on Hardev Singh v. Gurmail Singh 2 SCC 404 and T.G. Ashok Kumar v. Govindammal 2010) 14 SCC 370. Since 2019 No.1 plaintiff in each of the petitions was aware of the existence of the petitioner despite which no action was taken to implead the petitioner in the suits. CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 13. Furthermore no relief had been claimed against respondent No.6 Shri Rambir Singh as stated in the reply filed on behalf of respondent No.1 plaintiff placed at page 262 of the e file in CM(M) 30 2021. Thus it was submitted that when his undivided share in the premises was sold by respondent No.2 defendant No.1 to respondent No.6 Shri Rambir Singh and he in turn had transferred the same to the petitioner and as no declaration or relief has been claimed by respondent No.1 plaintiff in each of the petitions against respondent No.6 Shri Rambir Singh the petitioner’s interest could not have been prejudiced by the learned Trial Court. 14. Mr. Surinder Singh Bhatia learned counsel for the respondent No.1 plaintiff in CM(M) 30 2021 CM(M) 32 2021 CM(M) 43 2021 CM(M) 45 2021 CM(M) 50 2021 submitted that the respondent No.1 plaintiff in each of the petitions had never at any point of time conceded the claim of the petitioner to the complete ownership of the Suit Property. The petitioner had no locus standi to file the present petitions as he was not a party before the learned Trial Court. Moreover if the Sub Registrar had been restrained from registering the documents of transfer the petitioner has failed to implead the State Sub Registrar as a party here. According to the learned counsel for the respondent No.1 plaintiffs the documents filed by the petitioner itself reveal that they have not been registered. Further because the Sub Registrar of his own could not have refused to register the documents it had become necessary for him to ask the respondent No.1 plaintiff to bring such an order from the court and the application seeking these directions was CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 thereafter filed before the learned Trial Court on which the orders were issued restraining the Sub Registrar from registering the Sale Deeds. 15. Learned counsel for the respondent No.1 plaintiff further pointed out to the RTI reply dated 19th March 2021 to the RTI application of the respondent No.1 plaintiff that the Sale Deeds in respect of the Suit Property in favour of the petitioner had yet not been registered as the process had not been concluded and there was a restraint order of the Court. It was submitted by learned counsel for respondent No.1 plaintiff that Section 60 of the Registration Act 1908 requires that an endorsement be made and therefore without the endorsement it cannot be said that the documents have been registered. Thus there was no jurisdictional error in the impugned orders and therefore the present petitions were not maintainable. 17. Learned counsel for the respondents further argued that though the Agreement to Sell were between the respondent No.1 plaintiff and respondent No.2 defendant No.1 the other respondents defendants were impleaded as respondent No.2 defendant No. 1 was acting on their behalf as well. The Sale Deed referred to undivided shares. Since respondent No.2 defendant No.1 had fraudulently transferred for consideration the Flats as described in each of the Agreements to Sell the respondents No. 2 to 5 defendants No.1 to 4 being owners of the entire Suit Property were jointly liable for the Specific Performance of the Agreements or for return of the consideration paid as the amounts received had been shared CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 amongst the respondents No.2 to 5 defendants No.1 to 4. The respondent No.1 defendant No.1 had processed the entire transaction by purchasing the stamp paper on behalf of the respondents No.2 to 5 defendants No.1 to 4. Similarly for de sealing and other municipal dues the respondent No.2 defendant No.1 had acted on behalf of respondents No.2 to 5 defendants No.1 to 4 as such the claim of the respondent No.1 as plaintiff in each of the petitions against all these defendants was fully maintainable. 18. The remaining questions as to the source of money for payment of consideration whether or not a cash transaction as claimed by the petitioner could have been made were questions that required evidence. The law does not make a cash transaction void. There are only penalties prescribed for taxation purposes and therefore the claims of the respondent No.1 plaintiff in each of the petitions that the amounts of Rs.35 00 000 Rs.28 50 000 Rs.20 00 000 Rs. 21 00 000 Rs.45 00 000 and Rs.32 00 000 have been paid in cash respectively would not suffice to detract from the fact that such a transaction had in fact occurred. It was submitted that all the payments whether by cash or otherwise having been shared by the respondents No.2 to 5 defendants No.1 to 4 and if no protection was given and the respondents No.2 to 5 defendants No.1 to 4 frittered away the Suit Property the respondent No.1 plaintiff in all the petitions would be left high and dry. It was submitted that if the petitioner so felt the need he could implead himself by moving an application before the learned Trial Court. Hence it was prayed that the petitions be dismissed. CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 19. Having heard learned counsel for the parties it is clear that the questions of what consideration was paid or against whom the relief as claimed in the plaint can be granted are not questions that need to be considered by this Court at this stage. What needs to be looked into is whether the impugned orders are in any way so perverse that calls for interference by this Court in exercise of its powers under Article 227 of the Constitution of India. 20. The question whether the Sale Deeds have been registered or not and whether the Sub Registrar can be restrained from registering the same are of course the matters which need to be considered by this Court. The procedure for admitting documents for registration is mentioned in Sections 58 60 of the Registration Act 1908. Under Section 58 various particulars have to be endorsed on every document admitted to registration. Under Section 59 these endorsements have to be signed by the Registering Officer who is also to affix the date to the effect that the signatures on the documents have been made in his presence on that day. However the registration of a document is completed when the Certificate of registration is issued under Section 60. Section 60 of the Registration Act is reproduced herein below: “60. Certificate of registration.— 1) After such of the provisions of sections 34 35 58 and 59 as apply to any document presented for registration have been complied with the registering officer shall endorse thereon a certificate containing the word “registered” together with the number and page of the book in which the document has been CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 21. The Hon’ble Supreme Court in Chandrika Singh v. Arvind Kumar Singh 10 SCC 404 of course while considering the issue of right of pre emption had occasion to observe that unless the registration is complete under Section 60 of the Registration Act 1908 the transfer of the land in question would still be inchoate. Referring to its previous in Radhakisan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi 1 SCR 248 and Hiralal Agrawal v. Rampadarath Singh 1 SCR 328 where too it was observed again no doubt in the context of enforcement of right to pre emption that no transfer of immovable assets takes place unless the deed is registered and registration is complete only when the Certificate under the provisions of the Registration Act 1908 is issued. In other words even if the proceedings have taken place as provided under Section 58 and 59 of the Registration Act 1908 until and unless the Certificate duly signed sealed and dated by the Registering Authority is issued under Section 60 the transfer of title will not have taken place. 22. A reference may also be made to the Guidelines issued to the Sub Registrar Offices by the Department of Revenue Government of NCT of Delhi dated 12th November 2014 where it is clearly directed to the Sub Registrar that he shall not keep any document pending on the ground of a complaint made by any party unless there was a stay order granted by a Court of law to maintain status quo or restraining the transfer of property. that extent the Sub Registrar had asked the respondent No.1 plaintiff to produce a court order it cannot be said that he was over CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 stepping his powers. In the present case from the reply dated 19th April 2021 given to the RTI query it is evident that no Certificate in respect of any of the three Sale Deeds executed in favour of the petitioner has been issued. The response in the RTI query is reproduced herein below: It is thus apparent that while the Sale Deeds had been presented before the Sub Registrar and the Sub Registrar had proceeded to start the process of registering them in the absence of the Certificate of registration the transfer has not been completed. The impugned order restraining the Sub Registrar has been issued clearly before the completion of the process of registration. It is also to be noted that it is not the Sub Registrar who has refused to register the Sale Deeds but it is CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 the Court having head the parties that has asked the Sub Registrar not to go ahead. The Sub Registrar has not over stepped his powers. 25. The question now to be addressed is whether the learned Trial Court was justified in issuing the restraint orders while disposing of the applications under Order XXXIX Rules 1 & 2 CPC. The main grievance of the petitioner is that the respondent No.1 plaintiff had entered into unregistered Agreements for transfer of one Flat but was now seeking restraint on the entire Suit Property. Secondly without the petitioner being a party to the suits his 75% share in the Suit Property was being adversely impacted. In this regard the contention of the learned counsel for the respondent No.1 plaintiff that if the petitioner is aggrieved he should implead himself as a party to the suit has weight. The title of the petitioner to the Suit Property is not complete till the Certificate of registration is issued. Since the Sub Registrar will not be able to proceed further till the court issues directions the petitioner can await the result of the suits or he can implead himself as a party and raise all these questions before the learned Trial Court to seek a modification of the orders passed in applications under Order XXXIX Rules 1 & 2 CPC. 26. The petitioner is challenging the right of the respondent No.1 plaintiff to any relief on grounds based on law as well as facts. These cannot be determined in these proceedings where the only question that needs to be considered is whether the impugned orders are erroneous. This court cannot find any error in the impugned orders insofar as it has restrained the Sub Registrar from proceeding further in the matter of registration of the Sale Deeds as it is but a necessary CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 corollary to the restraint on the respondents No.2 to 5 defendants No.1 to 4 from creating third party interests in the Suit Property. None of them appear to have challenged the said order though it is clearly impacting them. The petitioner without being a party has no locus to challenge the impugned orders so far as it restrains the respondents No.2 to 5 defendants No.1 to 4 from creating third party interests in any manner in the Suit Property. accordingly dismissed. 27. The petitions thus are found to be without merit and are 28. The judgment be uploaded on the website forthwith. September 10 2021 CM(M) 30 2021 32 2021 43 2021 45 2021 50 2021 & 51 2021 |
Compensation for serious injuries should consider how it will affect the victim in the future: High Court of Jammu and Kashmir | When a serious injury has been inflicted upon a person, the compensation granted to him needs to include aspects like whether the injury will worsen in the future and whether it will affect his earning capacity or livelihood. A single member bench of Jammu and Kashmir High Court consisting of Justice Vinod Chatterji upheld the decision of the Motor Accidents Claims Tribunal in granting compensation to an accident victim which considered all these aspects in the case of United India Insurance Company Limited v Faizullah Khan [CMAM no. 39/2017] on 4th June 2021. The appellant, United India Insurance Company Limited, filed an appeal against the order passed by Motor Accidents Claims Tribunal, Srinagar in the case of Faizullah Khan v Ali Akbar Khan and others [Claim Petition no. 280/2004] where the tribunal granted an amount of Rs 6,91,000 as compensation along with 4% interest from the date of claim petition to the respondent, Faizullah Khan after he was hit by a Tata Sumo on 30th May 2004, sustaining serious injuries in the process. The owner of the offending vehicle was under proper insurance cover; however the insurance company, i.e., the appellant contends that he did not have an effective and valid driving licence and so they should not be liable to pay the full amount of compensation. Furthermore the insurance company submitted before the court that the respondent’s hospital bill only came to Rs 2,00,000 and so Rs 6,19,000 was too high an amount for the same. However the court dismissed the appeal on hand, stating that the company or its representatives never brought up any problems regarding the documents or licence of the owner of the offending vehicle, despite him submitting the same before the Motor Accidents Claims Tribunal. Additionally the court stated that the respondent had suffered a 40% disability of his injured limb which would adversely affect his future earning capacity and that the tribunal set the amount considering the doctors report which stated that the respondent’s disability would only aggravate and increase over the passage of time and so the amount awarded in compensation could not possibly be said to be too much. | HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMAM no.39 2017 Reserved on: 09.04.2021 Pronounced on: 04.06.2021 United India Insurance Company Limited Through: Ms Rifat Khalida Advocate Fizullah Khan and others Through: Mr S. H. Naqashbandi Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Appeal is Award dated 6th January 2015 passed by Motor Accident Claims Tribunal Srinagaron a claim petition no.280 2004 titled Faizullah Khan v. Ali Akbar Khan and others as also Order dated 8th December 2016 passed by the Tribunal on a Review Petition bearing File no.110 2015 primarily on the grounds that: driver of offending vehicle was not having valid and effective driving licence and compensation on account of medical expenses loss of earnings damages for pain suffering and trauma and loss of expectations of life has been given on higher side without application of judicial mind. 2. Heard and considered. 3. A claim petition as is discernible from record on the file was filed by claimant respondent no.1 before the Tribunal on 23rd December 2004 2 CMAM no.39 2017 averring therein that on 30th May 2004 while travelling on motorcycle bearing Registration no.JK01F 1806 he was hit by Tata Sumo bearing Registration no.JK05 2758 on Uri Road near TCP at Challain resulting seriously injuries to him. FIR no.32 2004 in this regard was registered in police station Boniyar. Claimant respondent no.1 maintained that he was sole distributor of castrol products in Kashmir Valley and his monthly income was Rs.30 000 . He claimed that he incurred Rs.2.00 Lakhs on his treatment and engaged two persons for taking his care and pay them weekly Rs.2000 each. Appellant Insurance Company in its written statement before the Tribunal insisted that in absence of policy particulars Insurance Company is not in a position to admit or deny liability. By impugned Award the Tribunal granted compensation in the amount of Rs.6 91 000 along with 4% interest from the date of claim petition till its final realization excluding the period from 11th April 2008 to 29th June 2011 when the matter was lying over as 4. A review petition was preferred by appellant Insurance Company before the Tribunal which was dismissed vide order dated 8th dismissed in default. December 2016. 5. Taking into account case set up and submissions made by learned counsel for appellant Insurance Company it would be apt to go through the record of the Tribunal as also impugned Award order. 6. First contention of appellant Insurance Company relates to validity and effectiveness of driving licence of driver of offending vehicle. Perusal thereof reveals that claimant’s evidence was closed in terms of Order 3 CMAM no.39 2017 dated 4th October 2013 and appellant Insurance Company was asked to lead its evidence. Documents with respect to offending vehicle including driving licence was produced by its owner before the Tribunal which were given to appellant Insurance Company for verification purposes. Learned counsel appearing for Insurance Company before the Tribunal submitted that offending vehicle was under proper insurance cover. However Insurance Company failed to file verification report about het documents and accordingly evidence of appellant Insurance Company was closed vide order dated 14th July 2014. Even a witness namely Jamsheed Saqib Legal Administrative Officer of Insurance Company produced and examined by appellant Insurance Company did not make any whisper as regards documentary evidence produced by owner of offending vehicle. In that view of matter there is no impetus or force in contention of appellant Insurance Company that driver of offending vehicle was not having valid and effective driving licence and as a consequence of which appeal on hand is liable to be dismissed. 7. Another contention of appellant Insurance Company compensation has been given on higher side by the Tribunal. Perusal of impugned Award reveals that while calculating loss of income earnings the Tribunal took into account the fact all facets of the matter. The Tribunal comprehensively discussed Issue no.2 vis à vis entitlement of compensation in consequence of injuries suffered by claimant. Claimant respondent no.1 examined Dr. Ghulam Qadir to strengthen his case. The Tribunal has in clear cut terms mentioned that 4 CMAM no.39 2017 as per disability certificate claimant suffered 40% disability but he did not explain whether it is overall functional disability of his whole body or 40% disability of injured limb only and in absence of any clarification disability can be taken as 40% disability of injured limb and not overall functional disability of his whole body. After saying this the Tribunal further said that it was also to be kept in mind that doctor had stated that by passage of time disability of claimant would aggravate and increase and therefore Tribunal has taken 30% disability instead of 40% and it is on the basis of 30% disability that the Tribunal has computed loss of income earning of claimant respondent no.1. In such circumstances impugned Award as also impugned order does not warrant any interference and as a corollary thereof the present Appeal is liable to be dismissed. 8. For the reasons discussed above the Appeal on hand is dismissed with connected CM(s). Interim direction if any shall stand vacated. 9. The record of the Tribunal along with copy of this judgement be sent Ajaz Ahmad PS Judge Whether the order is reportable: Yes No |
The signature or handwriting of the parties can be compared under the court of law with the help of Section 73 of the Indian Evidence Act of 1872: High Court Of Calcutta | The impugned order dated 20th July 2019, passed by learned Civil Judge (Junior Division), Kalyani, Nadia in T .S. No. 141 of 2014, rejecting the handwriting The application was rejected under Order XXVI Rule 10A of Code of Civil Procedure, praying for handwriting expert opinion is subject of challenge in this revisional application, this was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE SUBHASIS DASGUPTA, in the matter Jiyarul Mondal & Ors. Vs. Ainur Haque & Anr [ CO. No. 1254 of 2021]. Mr Malay Bhattacharyya learned advocate submits before the court that the learned court below had mechanically rejected the prayer for handwriting expert opinion without having understood the true purport of the provisions contained in Order XXVI Rule 10A of C.P.C. Also further states that no possession of proposed land had been handed over in favour of the opposite parties/plaintiffs in any manner whatsoever. Mr Shyamal Mukherjee, a learned advocate who was representing opposite parties making use of an affidavit in opposition submitted that the learned court below had rightly rejected the application under Order XXVI Rule 10A of C.P.C., praying for handwriting expert opinion. They came to a face where, the prayer for handwriting expert, according to learned advocate for the opposite parties, was unnecessary in the given facts and circumstances of this case, as there could be effective comparing of signature and as well as thumb impression of the vendor of opposite parties appearing in the two deeds produced after resorting to provisions available under Section 73 of Evidence Act. Also coming to the sale deed dated 12.06.2014, was sought to be declared illegal, baseless, non-operative, void and not binding upon the opposite parties. They mentioned that the opposite parties had their own land property on the southern side of such newly purchased property. The main issue was that the land which was sold to defendant 4-13 was again sold to the other defendant’s 1to 3, by sale deed dated 12.06.2014, which is under challenge before the learned court below. As against the case made out in the plaint, the specific defence of the petitioners set out in their written statement is that Janab Ali Mondal, never executed the purported deed of 1983 in favour of opposite parties/plaintiffs, and the possession of the same had not been delivered thereby. The main and important thing which is to be taken into consideration is to address the Court, whether the learned court below had rightly rejected the prayer for handwriting expert opinion or not. Defendants were called upon to adduce their respective evidence, Because plaintiffs said that filing of an application for handwriting expert opinion was purposive, simply to drag the proceedings by any means with mala fide intention. And also the document doing the necessary cross-examination for the purpose, soliciting any opinion from handwriting expert in the given facts and circumstances of this case would be an unnecessary exercise having no sanction of law. The genuineness and the veracity of the deed being No. 779 of 1983, said to be executed. by Janab Ali Mondal is under challenge, which would be evident from the written statement filed by the petitioners. Order XXVI Rule 10A C.P .C. Section 73 of the Indian Evidence Act of 1872, Permits the court to compare signature/handwriting of vendor of opposite parties/plaintiffs appearing in the deeds produced. The expert opinion under Order XXVI Rule 10AC.P .C. is set aside. The revisional application succeeds. | In the High Court at Calcutta Civil Revisional Jurisdication The Hon’ble Justice Subhasis Dasgupta CO. No. 12521 Jiyarul Mondal & Ors Ainur Haque & Anr For the Petitioners Plaintiffs Mr. Malay Bhattacharyya Adv Mr. Subhrajyoti Ghosh Adv For the Defendents Mr. Shyamal Mukherjee Adv Ms. Priyanka Chatterjee Adv Subhasis Dasgupta J: The impugned order no. 49 dated 20th July 2019 passed by learned Civil Judge Kalyani Nadia in T.S. No. 141 of 2014 rejecting the application under Order XXVI Rule 10A of Code of Civil Procedure praying for hand writing expert opinion is subject of challenge in this revisional application Mr. Malay Bhattacharyya petitioners defendants submitted that the learned court below had mechanically rejected the prayer for hand writing expert opinion without having understood the true purport of the provisions contained in Order XXVI Rule 10A of C.P.C together with the specific averment taken by petitioners in their written statement challenging the authenticity and genuineness of the deed being no. 7783 said to have been executed by one Janab Ali Mondal and thereby alleging therein that the purported deed under reference had been fraudulently prepared collusive null and void and not binding upon the petitioners and further that no possession of proposed land had been handed over in favour of the opposite parties plaintiffs in any manner whatsoever Adverting to the impugned order learned advocate for the petitioners contended that learned court below was not justified in denying the hand writing expert opinion merely on the ground that the purported deed under challenge had already been exhibited and further the evidence of the opposite parties plaintiffs had been concluded including cross examination Mr. Shyamal Mukherjee learned advocate representing opposite parties making use of an affidavit in opposition submitted that the learned court below had rightly rejected the application under Order XXVI Rule 10A of C.P.C. praying for hand writing expert opinion on the ground that there had been closure of the evidence of plaintiffs and the purported document had already been marked exhibit providing ample scope to the petitioners to challenge the veracity of the purported document doing necessary cross examination More so the prayer for hand writing expert according to learned advocate for the opposite parties was unnecessary in the given facts and circumstances of this case as there could be effective comparing of signature and as well as thumb impression of vendor of opposite parties appearing in the two deeds produced after resorting to provisions available under Section 73 of Evidence Act It is a suit for declaration wherein sale deed dated 12.06.2014 was sought to be declared illegal baseless non operative void and not binding upon the opposite parties The case of the opposite parties made out in Para 1 & 2 of the plaint is that the suit property was previously owned and purchased by one Janab Ali Mondal. Said Janab Ali Mondal sold out in the year 1983 four 4) decimals of land out of 35 decimals in plot no. 246 receiving valuable consideration to opposite parties plaintiffs. The opposite parties had their own land property in southern side of such newly purchased property The defendant nos. 4 13 being the descendants of vendor of opposite parties plaintiffs knowing fully well that their predecessor had already sold out property to the extent mentioned hereinabove to opposite parties plaintiffs they again sold away the same to defendant nos. 1 to 3 by sale deed dated 12.06.2014 which is under challenge before the learned court below As against the case made out in the plaint the specific defence of the petitioners set out in their written statement is that Janab Ali Mondal never executed the purported deed of 1983 in favour of opposite parties plaintiffs and the possession of the same had not been delivered Upon perusal of the pleadings of both the parties it appears that since beginning petitioners had challenged the veracity and genuineness of the signature of vendor of opposite parties plaintiff appearing on the deed stated to have been executed by their predecessor Janab Ali Mondal The point to be addressed by this Court is whether the learned court below had rightly rejected the prayer for hand writing expert opinion Contention was raised by the opposite parties plaintiffs that filing of such application for hand writing expert opinion was purposive simply to drag the proceedings by any means with mala fide intention even after closure of evidence of plaintiffs and also when petitioners defendants were called upon to adduce their respective evidence This Court was thus sought to be impressed by the learned advocate for the opposite parties that when the purported document under challenge had already been marked exhibit providing adequate scope to challenge the veracity of the document doing necessary cross examination for the purpose soliciting any opinion from hand writing expert in the given facts and circumstances of this case would be an unnecessary exercise having no sanction of law The genuineness and the veracity of the deed being No. 7783 said to be executed. by Janab Ali Mondal is under challenge which would be evident from the written statement filed by the petitioners. Order XXVI Rule 10A C.P .C. deals with scientific investigation by hand writing expert for extracting the truth even after the purported document might have been made exhibit. Section 73 of the Indian Evidence Act of 1872 permits the Court to compare signature hand writing of vendor of opposite parties plaintiffs appearing in the deeds produced simply for strengthening the finding to be reached by court below upon production of cogent material and evidence which is of course independent of hand writing expert’s opinion as available under Order XXVI Rule 10A C.P.C. but is always subject to the discretion of Court to be rationally and judicially exercised depending upon the facts and circumstances of a particular case Pertinently it may be mentioned that the impugned deed the execution of which by the predecessor of the petitioners has been grossly challenged by the petitioners was marked exhibit for the plaintiffs upon calling the required staff of Registry Office with production of volumn for proving a document the certified copy of which was produced by the plaintiffs requiring proof of such document on the same date itself of adducing evidence by the staff of Registry Office In such context denial of such hand writing expert opinion on the ground of causing prolixity to the suit is not justified upon visualization of the nature of the defence being put up by the petitioners defendants in the given circumstances of this case For the reasons as aforesaid the impugned order rejecting hand writing expert opinion is not sustainable. Soliciting hand writing expert opinion with respect to the signature hand writing appering on the disputed and admitted documents said to have been executed by the vendor of the plaintiffs opposite parties in the given context of this case The impugned order dated 20th July 2019 passed by learned Civil Judgekalyani Nadia in T .S. No. 1414 rejecting the hand writing expert opinion under Order XXVI Rule 10AC.P .C. is set The revisional application succeeds Learned Court below is directed to take necessary steps initiating correspondence with the appropriate authority concerned within two (02 months from the date of communication of this order to the learned court below for examination of the disputed and admitted documents by hand writing expert and ascertain the anticipated costs to be deposited by the petitioners defendants within fortnight after the date of collection of report as regards expenses necessary for hand writing expert opinion under Order XXVI Rule 10A C.P .C Both the parties to this case are accordingly directed to co operate with the learned court below in the matter of proposed hand writing expert opinion so that no unnecessary delay is caused to the ultimate disposal of this case even after obtaining hand writing expert opinion Petitioners are further directed to make communication of this order to the learned court below Urgent certified copy of this order and judgment if applied for be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities Subhasis Dasgupta J |
Approximate economic value in insurance must be added to the housemaker’s work: Supreme Court | Approximate monetary value of the housemaker must be considered while providing the insurance amount to the dependents of the deceased. A bench of Supreme Court comprising of J. N.V. Ramana, J. Surya Kant and J. Aniruddha Bose opined that economic value should be attached to a housewife’s work while pronouncing a judgment over an insurance claim in the case of Kirti & anr. Etc. vs. Oriental Insurance Company ltd. [civil appeal nos 19-20 of 2021]. In the present case, Vinod and Poonam, the deceased couple while riding on a motorcycle were hit by a Santro car in Delhi. An FIR was registered against the driver. The two daughters and the septuagenarian parents filed a petition claim under Section- 166 of the Motor Vehicle Act. The driver protested that it was the negligence of the couple that caused the accident. The Insurance Company offered a compensation of Rs. 6.47 lakh and Rs. 10.71 lakh for the death of Poonam and Vinod respectively. The testimony of witnesses revealed that the driver was indeed driving rashly and hence the liability of the insurer arises. For determining the quantum of compensation the age of Poonam and Vinod i.e. 26 and 29 were considered and the Tribunal adopted the age multiplier of 17. The minimum wage of Vinod was determined and an additional 25 per cent of the income was accounted for the future prospects for Poonam. One- third of the salary of Vinod was set aside for personal expenses. Tribunal awarded the total compensation of Rs. 40.71 lakh to the claimants. The High Court reduced the notional income of both the deceased and adopted the minimum wage of unskilled workers that was applicable in Haryana, the place of residence of the deceased resulting in one- third income of Poonam was deducted towards the personal expenses and both of them were denied of the future prospects. In view of the contribution of Poonam in the household work, 25 per cent of gratuitous income was added to her salary. The Supreme Court in the instant case held, “Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. The sheer amount of time and effort that is dedicated to household work by individuals, who are more likely to be women than men, is not surprising when one considers the plethora of activities a housemaker undertakes. A housemaker often prepares food for the entire family, manages the procurement of groceries and other household shopping needs, cleans and manages the house and its surroundings, undertakes decoration, repairs and maintenance work, looks after the needs of the children and any aged member of the household, manages budgets and so much more.” The court further contended, “In rural households, they often also assist in the sowing, harvesting and transplanting activities in the field, apart from tending cattle. However, despite all the above, the conception that housemakers do not ‘work’ or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.” | These civil appeals which have been heard through video Motor Accident Claims Tribunal Rohini on 24.12.2016 under Section 168 of the Motor Vehicle Act 1988 was reduced to Rs 22 lakhs The deceased couple Vinod and Poonam while commuting on a motorcycle in Delhi at around 7AM on 12.04.2014 were hit at an impact immediately incapacitated both the deceased and they soon passed away from craniocerebral damage and haemorrhagic shock Penal Code 1860 against the driver and the of the MV Act by the two toddlerdaughters and septuagenarian claiming that the deceased were themselves driving negligently and were examined by the appellantclaimants and none by the respondents. The insurance company offered as Relying on the strong testimony of the independent witness it was concluded that the cardriver was indeed driving rashly and thus quantum of compensation the Tribunal began by determining the ages of Poonam and Vinod as being 26 and 29 years respectively Consequently an agemultiplier of 17 was adopted. Although the unable to substantiate his claim with any documentary evidence dependency. An additional 25% income was accounted for future prospects of Poonam and 1 3rd of Vinod’s salary was deducted as compensation for loss of love and affection estate and funeral This computation was challenged by the respondentinsurer given their established residence in Haryana the minimum wage nondeduction of personal expenses for Poonam was prayed to be of contributory negligence. A categorical submission was made prospects’ to nonpermanent employees pending resolution of which The High Court concurred with these contentions and consequently reduced the notional income for both deceased by Haryana instead of Delhi. Similarly 1 3rd of Poonam’s income was to both deceased. However given the totality of circumstances and Poonam’s contribution to her household 25% additional gratuitous increase of income between Vinod and Poonam and the usage of Learned Counsel for the respondentinsurer on the other hand the ground of future prospects. It is claimed that the High Court’s had conceded to a lower computation under the head of loss of 10. We have thoughtfully considered the rival submissions. It the deceased’s dependent mother ought not to be a reason for ought not to ordinarily affect pending proceedings. Just like how appellantclaimants cannot rely upon subsequent increases in minimum wages the respondentinsurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal 11. Any compensation awarded by a Court ought to be just reasonable and consequently must undoubtedly be guided by principles of fairness equity and good conscience.3 Not only did the family of the deceased consist of septuagenarian parents but there were also two toddlergirls aged merely 3 and 4 years each of whom selfdependency. Tragically in addition to the married couple the and Poonam ought to be 1 4th only and not 1 3rd as applied by the Tribunal and the High Court more so when there were four family 2 Director of Elementary Education v. Pramod Kumar Sahoo 10 SCC 674 ¶ 11 3 See Helen C Rebello v. Maharashtra State Road Transport Corp 1 SCC 90 ¶ 28. 12. Second although it is correct that the claimants have been adoption of the lowesttier of minimum wage while computing his he maintained a reasonable standard of living for his family as existing standard of living of a deceased’s family is a fundamental endeavour of motor accident compensation law.4 Thus at the very Third and most importantly it is unfair on part of the respondentinsurer to contest grant of future prospects considering not to be paid pending outcome of the Pranay Sethi 14 SCC 1 ¶ 9 reference. Nevertheless the law on this point is no longer res integra and stands crystalised as is clear from the following extract of the necessary method of computation. The established income Given how both deceased were below 40 years and how they have not been established to be permanent employees future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income is both incorrect in law6 and without merit considering the quote the observations of this Court in Hem Raj v. Oriental there is positive evidence of income and where minimum 5 National Insurance Co Ltd v. Pranay Sethi 16 SCC 680 ¶ 59.4 7 15 SCC 654 income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly in the present case addition of 15. Finally given the lack of arguments on the other heads of funeral charges loss of estate love and affection there arises no adoption of 17 as the agemultiplier award of 9% interest calculation 16. For the reasons aforestated the appeals are allowed inpart to reach a new total of Rs 33.20 lakhs. The enhanced amount of 9% p.a. from the date of filing of the Detailed Accident Report i.e by my learned brother Surya Kant J. and am in complete agreement with him. However I thought to supplement the reasoning in his judgment with respect to the question of notional income of a housewife and whether future prospects category of cases relates to those wherein the victim was employed but the claimants are not able to prove her actual income before the Court. In such a situation the Court record like the quality of life being led by the victim and her family the general earning of an individual employed in that field The second category of cases relates to those situations nonearning victim such as a child a student or a homemaker instance for students the Court often considers the course that they are studying their academic proficiency the family background etc. to determine and fix what they could earn in 5. One category of nonearning victims that Courts are often The granting of compensation for homemakers on a pecuniary basis as in the present case has been considered by this Court earlier on numerous occasions. A threeJudge Bench of this Court in Lata Wadhwa v. State of Bihar 8 SCC 197 services rendered by them in the house and their age. This Court in that case held as follows “10. So far as the deceased housewives are attempt has been made to determine the compensation on the basis of services the age group of the housewives appropriate housewives which has been arrived at Rs 12 000 in any manner by providing the data for housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family even on a modest estimation should be Rs 2010) 9 SCC 218 this Court while dealing with the grant of the contribution made by the wife to the in terms of money. The gratuitous services rendered by the wife with true love and managing the household affairs cannot be in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the children including cooking of food washing of clothes etc. She teaches small children and provides invaluable guidance to them for their the household work such as cooking food clean etc. but she can never be a substitute for in lieu of the services rendered by the wife mother to the family i.e. the husband However for the purpose of and children award of compensation to the dependants some pecuniary estimate has to be made of context the term “services” is required to be attention given by the deceased to her children the loss of gratuitous services rendered by the Ltd. 2020 SCC OnLine SC 521 wherein the notional income of Before discussing this topic further it is necessary to Census nearly 159.85 million women stated that “household work” was their main occupation as compared to only 5.79 In fact the recently released Report of the National Statistical Office of the Ministry of Statistics & Programme Implementation Government of India called “Time Use in India 2019” which is the first Time Use Survey in the country and collates information from 1 38 799 households for the period January 2019 to December 2019 reflects the same gender disparity.1 The key findings of the survey suggest that on an average women spend nearly 299 minutes a day on unpaid domestic services for household members versus 97 minutes spent by men on average.2 Similarly in a day women on average members as compared to the 76 minutes spent by men on the picture in India even more clear women on average spent 16.9 and 2.6 percent of their day on unpaid domestic services and unpaid caregiving services for household members It is curious to note that this is not just a phenomenon by a Commission set up by the French Government analyzing data from six countries viz. Germany Italy United Kingdom France Finland and the United States of America highlighted “117. Gender differences in time use are significant. In each of the countries under consideration men spend more time in paid unpaid work. Men also spend more time on leisure than women. The implication is that 1 National Statistical Office Time Use in India 2019has highlighted this bias those who are doing household duties like cooking cleaning of utensils looking after children fetching water collecting firewood have been categorised as nonworkers and equated with beggars prostitutes and prisoners who according to the census are not engaged in economically productive work. As a result of women in India have been classified in the Census of India 2001 as nonworkers and prisoners. This entire exercise of census of housework has been a problem which was identified as far wages whether in the factory or in the home but mothers and wives gratuitously to their own or his cook the national dividend is This issue was further focused on by those in the field of traditional labour statistics which did not consider unpaid 6 Cecil Pigou The Economics of Welfare 44case. However rationale 18. Apart from the above scholarship around this issue could provide some guidance as to other methods to determine the of the income of the earning surviving spouse the value of a homemaker s unpaid labour by at home viz. the opportunity lost. The second is the partnership method which partnership and in this method the homemaker s salary is valued at half her husband s salary. Yet another method is to evaluate homemaking by determining how 8 See Ann Chadeau What is Households’ NonMarket Production Worth OECD ECONOMIC STUDIES NO. 18Also see United Nations Economic Commission for Europe supra note 7. with paid workers. This is called the 19. However it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or towards determining in the best manner possible the truest approximation of the value added by a homemaker for the conservatively nor so liberally as to make it a bounty to claimants 16 SCC 680 Kajal v. Jagdish Chand 4 21. Once notional income has been determined the question granted with regard to it. Initially the awarding of future by the victim (1994) 2 SCC 176 Sarla Dixitv. Balwant Yadav victim while awarding future prospects was continued in the judgment of this Court in Sarla Verma v. Delhi Transport Corporation 6 SCC 121 wherein the Court “24. In Susamma Thomas2 SCC 176 increased only by 50% and Bezbaruah3 SCC 148] the income was increased by a mere 7%. In view of the imponderables and uncertainties we are in favour of adopting as a rule of thumb an prospects where the deceased had a the annual income is in the taxable range the salary less tax”). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition where the age of the deceased is more than 50 years Though the evidence may indicate a different percentage of increase it is necessary to standardise the addition to avoid different was selfemployed or was on a fixed salary the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special 22. However there was a shift in jurisprudence regarding future prospects with the fiveJudge Bench decision of this Court in future prospects to even selfemployed persons or those on a we are disposed to think when we accept the principle of standardisation there is really no selfemployed or a person who is on a fixed salary. To follow the doctrine of actual of multiplicand would be unjust. The determination of income while computing so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In an acceptable certainty. But to state that the of compensation would be inapposite. It is hand and staticness on the other. One may perceive that the comparative measure is other but such a perception is fallacious. It is because the price rise does affect a self employed person and that apart there is always an incessant effort to enhance one s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of competing attitude in the private sector to enhance the salary to get better efficiency is selfemployed is bound to garner his resources and raise his charges fees so that he can live with same facilities.…Taking into consideration the cumulative factors namely passage of time the changing society escalation of price the change in price index the human attitude to follow a particular pattern of life etc. an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the 23. The rationale behind the awarding of future prospects is into account the realities of life particularly of inflation the quest of individuals to better their circumstances and those of their 24. Taking the above rationale into account the situation is in the first category of cases outlined earlier those where the would be earning an income. It is clear that no rational particularly when the Court has determined their notional 25. When it comes to the second category of cases relating to take place in the domain of work within the household. It is worth noting that although not extensively discussed this Court has been granting future prospects even in cases pertaining to notional income as has been highlighted by my learned brother Surya Kant J. in his opinion15 SCC 654 Sunita Tokas v. New 26. Therefore on the basis of the above certain general notional income for homemakers and the grant of future prospects with respect to them for the purposes of grant of a. Grant of compensation on a pecuniary basis with respect b. Taking into account the gendered nature of housework with homemaker attains special significance. It becomes a recognition of the work labour and sacrifices of notional income of a homemaker depending on the facts d. The Court should ensure while choosing the method and e. The granting of future prospects on the notional income calculated in such cases is a component of just 27. With the above observations I concur with the opinion of |
Interim stay order by the Supreme Court does not extirpate the binding effect of judgment by High Court: Calcutta High Court | Any interim stay order given in refutation of an earlier judgment of any high court does not diminish its binding value. In the present matter surrounding property transactions under the Prohibition of Benami Property Transactions Act, 1988, the bench comprising of Shekhar B. Saraf J. delved into the persuasive value of interim stay orders by the Supreme Court in the matter of Deific Abode LLP v. Union of India & Ors [WPA 11123 of 2020]. The petitioners contended that the impugned show cause notices have been issued under the 1988 Act. The said impugned notices under the 1988 Act, as per the contention of the petitioners, do not record any reasons as mandated by law. The fundamental point of contention was narrowed to the unconscionable and illegal ‘retrospective applicability’ of the 1988 Act, leading to these proceedings. The impugned proceedings could not have been initiated under the said 1988 Act as the amendment Act of 2016 to the said 1988 Act had come into force on November 1, 2016 and the immovable property, which has been designated as a benami property under the 1988 Act was purchased much prior to the coming into force of the said amendment Act on November 1, 2016 To adjudge the provisions of the said Act, the Court referred to the judgment rendered in M/s. Ganpati Dealcom Pvt. Ltd v. Union of India (WPO No. 687 of 2017) dated December 12, 2019, which had interpreted the amendment Act of 2016 to the 1988 Act to be prospective in nature, and had also ruled that in the absence of enabling procedural rules under the 1988 Act when the immovable property was purchased. In other words, what was to be noted was the fact that while the 1988 Act entered the statute books, no procedural rules were framed under Section 8 of the 1988 Act for the declaration of the benami property, rendering the 1988 Act effective, merely on paper. The bench relied on the decision of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, (1992) 3 SCC 1 wherein the Hon‟ble Supreme Court had explained the difference between an order of stay of operation of an impugned order and the quashing of impugned order. It was accordingly seen that the effect of the order of stay in a pending appeal before the Apex Court does not amount to any declaration of law but is only binding upon the parties to the said proceeding and at the same time, such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned. | WPA 111220 Deific Abode LLP Union of India & Ors. WPA 111220 Oswell Conclave Pvt. Ltd. Union of India & Ors. WPA 111320 Oval Conclave Pvt. Ltd. Union of India & Ors. WPA 111320 Trinity Abode LLP Union of India & Ors. WPA 111320 Sunflower Synergies Pvt. Ltd. State of West Bengal & Ors. WPA 78821 Himalya Vyaapar Pvt. Ltd. & Anr. Union of India & Ors. WPA 85321 Shree Prakash Tracon Pvt. Ltd. & Anr. Union of India & Anr. WPA 89021 2 Himalya Vyapaar Pvt. Ltd. & Anr. Union of India & Ors. Mr. J.P. Khaitan Mr. Ratnanko Banerjee Mrs. Manju Agarwal Mr. Bajrang Manot Mr. Sourab Seth Mr. Kanishk Kejriwal Mr. S. Chakraborty Ms. Sweta Mohanty …. for the petitioners. Mr. Y.J. Dastoor Mr. Smarajit Roy Chowdhury Mr. Soumen Bhattacharjee … for the Union of India. Mr. Dhiraj Kumar Trivedi … for the Respondent. For the purpose of stating the facts I shall specifically refer to W.P.A No. 7880 of 2021. Needless to mention all the petitioners are similarly placed and the decision herein shall cover all the writ petitions. By taking the recourse of filing these writ applications under Article 226 of the Constitution of India the writ petitioners have assailed a set of show cause notices issued under sub section of Section 24 of the Prohibition of Benami Property Transactions Act 1988 hereinafter referred to as the „1988‟ Act). Shorn of unnecessary details the petitioners contend that the impugned show cause notices have been issued under the 1988 Act. The said impugned notices under the 1988 Act as per the contention of 3 the petitioners do not record any reasons as mandated by law. The fundamental point of contention as advanced by Mr. Khaitan learned Senior Advocate appearing on behalf of the petitioners is the applicability’ of the 1988 Act leading to these proceedings. As per the arguments advanced by Mr. Khaitan impugned proceedings could not have been initiated under the said 1988 Act as the amendment Act of 2016 to the said 1988 Act had come into force on November 1 2016 and the immovable property which has been designated as a benami property under the 1988 Act was purchased much prior to the coming into force of the said amendment Act on November 1 2016. 5. When the matter was last taken up Mr. Khaitan had conspicuously drawn my attention to the Division Bench judgment of this Court rendered in M s. Ganpati Dealcom Pvt. Ltd v. Union of India dated December 12 2019 which had interpreted the amendment Act of 2016 to the 1988 Act to be prospective in nature and had also 4 ruled that in the absence of enabling procedural rules under the 1988 Act when the immovable property was purchased the respondent authorities could not initiate any proceedings in respect of the same. In other words what was to be noted was the fact that while the 1988 Act entered the statute books no procedural rules were framed under Section 8 of the 1988 Act for the declaration of the benami property rendering the 1988 Act effective merely on paper. As a result in spite of the amendment Act of 2016 which introduced the definitions of “benami property” and “benami transaction” in sub sections of and of Section of the 1988 Act such amendment would not be applicable in respect of transactions pertaining immovable properties which predated implementation of the amendment Act of 2016. 6. Mr. Khaitan had also placed his reliance on the judgment rendered by the Bombay High Court in Isharat v. Rozy Nishikant Gaikwad reported in 2017ABR 706 as well as the judgment rendered by the Rajasthan High Court in Niharika Jain v. Union of India & Ors. reported in 2019 SCC Online Raj 1640 to buttress that both these High Courts had returned similar findings of law as laid down in M s. Ganpati Dealcom Pvt. Ltdin so far as the operation of the amendment Act of 2016 to 5 the 1988 Act was concerned that is such amendment Act of 2016 would apply prospectively. 7. However Mr. Khaitan had fairly brought to my notice that the Division Bench ruling rendered in M s. Ganpati Dealcom Pvt. Ltdhad been assailed before the Hon‟ble Supreme Court vide a Special Leave Petition bearing SLP No. 2784 2020 wherein the Apex Court had passed the following order dated February 3 2020: “ Issue notice. Mr. Ankit Anandraj Shah. Learned counsel accepts notice on behalf of respondent. impugned order in so far as it holds the 2016 amendment of the Benami Transactions Act 1988 was prospective in nature shall remain the operation of the meantime Emphasis supplied) I had accordingly requested Mr. Khaitan to place before me pertinent precedents elucidating the legally permissible procedure to be followed by me when it came to the binding nature of the dictum rendered by the Division Bench in M s. Ganpati Dealcom Pvt. Ltd supra) and the resultant effect of the order of stay dated February 3 2020 imposed by the Supreme Court on the same in the SLPNo. 2784 2020. 6 9. Subsequent to my request Mr. Khaitan placed his reliance on the following precedents: i. Pijush Kanti Chowdhury v. State of West Bengal reported in3 CHN 178 ii. Niranjan Chatterjee v. State of West Bengal reported in 2007 SCC Online Cal 283 iii. Viswapriya Limited v. Government of Tamil Nadu reported in4 LW 33 and iv. Shree Chamundi Mopeds Ltd. v. Church of India Trust Association Madras 1992) 3 SCC 1. 10. Dealing with Shree Chamundi Mopeds Ltd. supra) first the Hon‟ble Supreme Court had explained the difference between an order of stay of operation of an impugned order and the quashment of an impugned order in the following words: “10. ..[W]hile considering the effect of an interim order staying the operation of the order under challenge a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not however lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order the order of the Appellate Authority continues to exist in law and so long as it exists it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending…” Emphasis supplied) 11. Subsequently a Division Bench of this Court in Pijush Kanti Chowdhury while framing the following question of law simply because in an application for grant of special leave the Supreme Court has stayed the operation of an order passed by the Division Bench of this Court declaring a statutory provision as ultra vires the Constitution of India as an interim measure imposing further conditions in those cases whether a citizen who is not a party to the previous litigation can be deprived of the benefit of the doctrine of precedent in resisting the action of the State on the ground that it could not invoke the ultra vires provision of the Statute against him noted inter alia the above observation of the Supreme Court in Shree Chamundi Mopeds Ltd(supra) and finally laid down the law in the following terms: “Therefore the effect of the order of stay in a pending appeal before the Apex Court does not amount to „any declaration of law‟ but is only binding upon the parties to the said proceedings 8 and at the same time such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while granting the interim order the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned.” 12. The same Division Bench comprising Bhaskar Bhattacharya and Kishore Kumar Prasad JJ. which had laid down the law in Pijush Kanti Chowdhury supra) reiterated the same view in Niranjan Chatterjee in Viswapriya Limited supra). It had also noted the Supreme Court‟s observation recorded in Shree Chamundi Mopeds Ltd.as well and had in its considered opinion chosen to follow the same in contradistinction to the judgment of the Delhi High Court which had differed with the law laid down in Pijush Kanti Chowdhury5 HCC386 had upon considering Pijush Kanti Chowdhury supra) ruled the following: “This Court with utmost humility would like to state that it is not in agreement with the view expressed by the Calcutta High Court in Pijush Kanti Chowdhury case as it is of the opinion that once a stay order has been passed by a superior court the order of the lower court ceases to operate till the stay order is in effect. In fact the judgment in Shree Chamundi of the Supreme Court Mopeds Ltd. v. Church of South India Trust Assn. itself lays down that stay of an operation of an order means that the order would not be Emphasis supplied) 15. From the above discussion what becomes abundantly clear is that while the law laid down by the Division Bench of this Court in Pijush Kanti Chowdhury has been followed by the Madras High Court in ViswapriyaLimitedthe Delhi High Court had differed with the same in Alka Gupta4 CHN 454 I had the occasion to examine in detail the doctrine of precedent and 10 therefore based on the same I have no hesitation in stating that I am bound by the decision of the Division Bench rendered in Pijush Kanti Chowdhury and subsequently reiterated in Niranjan Chatterjee supra). In pursuance of the decision of Pijush Kanti Chowdhury notwithstanding the operation of stay of the order of the Division Bench of this Court rendered in M s. Ganpati Dealcom Pvt. LtdI am bound to follow the same as per the doctrine of precedent applicable. 17. Based on such understanding of the law I shall now also proceed to consider the relevance of the decisions rendered in Joseph Isharat and Niharika Jainhad considered the amendment Act of 2016 to the 1988 Act as prospective in its application on the following terms: law “7. What is crucial here is in the first place whether the change effected by the legislature in the Benami Act is a matter of procedure or is it a matter of substantial rights between the parties. If it is merely a procedural then of course procedure applicable as on the date of hearing may be relevant. If on the other hand it is a matter of substantive rights then prima facie it will only have a prospective application unless the amended law speaks in a language “which expressly or by clear intention takes in even pending matters”. Short of such intendment the law shall be applied prospectively and not retrospectively. 8. As held by the Supreme Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan4 Section 4 of the Benami Act or for that matter the Benami Act as a whole creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created under the Act. Merely because it uses the word “it is declared” the Act is not a piece of declaratory or curative legislation. If one has regard to the substance of the law rather than to its form it is quite clear as noted by the Supreme Court in R. Rajagopal Reddy that the Benami Act affects substantive rights and cannot be regarded as having a retrospective operation. The Supreme Court in R. Rajagopal Reddy also held that since the law nullifies the defences available to the real owners in recovering the properties held benami the law must apply irrespective of the benami transaction and that the expression “shall lie” in Section 4(1) or “shall be allowed” in Section 4(2) are prospective and apply to the present future stages) as well as future suits claims and actions only. These observations clearly hold the field even as regards the present amendment to the Benami Act. The amendments introduced by the Legislature affect substantive rights of the parties and must be applied time of Emphasis supplied) 19. The decision of the Bombay High Court was assailed by way of a Special Leave Petition bearing SLP C) No. 12328 2017 wherein by an order dated April 28 2017 such SLP was dismissed at the threshold. Be that as it may it does not mean that the judgment rendered in Joseph Isharat has been 12 affirmed as a result of such dismissal. It is axiomatic to state that such an order passed in a SLP at the threshold without detailed reasons does not constitute any declaration of law or constitute as a binding precedent. If any precedent be needed for such enunciation of law one may refer to paragraph 4 of the Supreme Court‟s judgment rendered in Union of India v. Jaipal Singh reported in1 SCC 121. 20. Subsequently the ruling rendered in Joseph Isharat was also considered by the learned Single Judge in Niharika Jainand Niharika Jainby the Bombay High Court and Rajasthan High Court respectively on this Court is an important question which needs a comprehensive answer. 14 23. The law enunciated by Full Bench of the Supreme Court in Valliama Champaka Pillai v. Sivathanu Pillai reported in 4 SCC 429 has clearly laid down that the decision of one High Court is not a binding precedent on another High Court. The Court in that case was seized of with the lis as to whether the decision of the erstwhile Travancore High Court could be made a binding precedent on the Madras High Court on the basis of the principle of stare decisis. The Apex Court had ruled definitively that such a decision can at best have persuasive value and such a decision does not enjoy the force of a binding precedent on the Madras High Court. 24. The Bombay High Court in Commissioner of Income Tax v. Thana Electric Supply Ltd. reported in 206 ITR 727 had considered an important question in the interpretation of the Income Tax Act 1961 which is worth consideration. The Division Bench in Thana Electric Supply Ltd. was seized of with the question of interpreting if one High Court while interpreting an All India Statute was bound to follow the decision of any other High Court and to decide the question accordingly even if its own view is considered contrary thereto in view of the practice followed by the Court in such matters. The Division Bench had also 15 relied on Valliama Champaka Pillai and laid down some emerging propositions post analyzing some leading precedents dealing with the concept of ratio decidendi and obiter dicta as follows: “20. From the foregoing discussion the following propositions emerge: a) The law declared by the Supreme Court being binding on all courts in India the decisions of the Supreme Court are binding on all courts except however the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is of course the ratio of the decision and not every expression found therein. b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows: i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been ignored nor drawn should neither be overlooked. If he does not find himself in agreement with the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question 2 SCC 499 : AIR 1982 SC the same ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court it should refer the case to a larger iii) Where there are conflicting decisions of courts of co ordinate jurisdiction the later decision is to be preferred if reached after full consideration of the earlier decisions. d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may at best have only persuasive effect. By no amount of stretching of the doctrine of stare decisis can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be conclusion the decisions cannot have the force of binding precedent on other High Courts or on any subordinate courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution.” Emphasis supplied) 17 25. Therefore the decisions rendered in Joseph Isharat and Niharika Jain by the Bombay High Court and Rajasthan High Court respectively based on proposition laid down in Thana Electric Supply Ltd. can at best be described to be possessing a high persuasive value before this Court but it does not possess the character of a binding precedent. 26. Accordingly based on the extensive discussion in the foregoing paragraphs these salient principles i. As per the law laid down in Shree Chamundi Mopeds Ltdby the Supreme Court the effect of an interim order staying the operation of an impugned order and the quashment of an impugned order are considerably different from one another. While the former merely ensures that the order impugned would not be operative from the date of the passing of the order of stay without annihilating the said impugned order from existence the latter ensures that such quashment results in the restoration of the position as it stood on the date the impugned order was passed with the impugned order ceasing to exist in the eyes of the law. ii. Quashment of such impugned order would revive the appeal before the appellate authority and would be considered pending before such appellate authority awaiting the appellate authority‟s fresh consideration. iii. As per the law laid down in Pijush Kanti Chowdhuryand reiterated in Niranjan Chatterjeeby the Division Bench of this Court in cases where an appeal remains pending before the Supreme Court and an order of stay remains operative in such a pending appeal such stay of order does not amount to any „declaration of law‟ under Article 141 of the Constitution of India but is merely binding upon the parties to the said proceedings. iv. Such an order of stay which is interim in nature does not obliterate the binding effect of the judgment of the concerned High Court as a precedent for the reason that while granting the interim order of stay of such order of the High Court the Supreme Court had no opportunity to lay down any proposition of law which was in variance to the one declared by the High Court which is impugned before the Supreme Court. v. Accordingly if a learned Single Judge of this Court is seized with the question of applicability of a Division Bench judgment which is subject to an order of stay in a pending appeal before the Supreme Court the learned Single Judge is to apply the ratio as laid down by the Division Bench of this Court as per the doctrine of precedent. vi. As per law enunciated in Valliama Champaka Pillai the decision of one High Court is not a binding precedent on another High Court. vii. As per the law laid down in Thana Electric Supply Ltd. the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may at best have only persuasive effect. By no amount of stretching of the doctrine of stare decisis can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to the very doctrine of stare decisis and also the various decisions of the Supreme Court which have interpreted the scope and ambit thereof. 27. Based on the above principles that emerge I am of the view that the Bombay High Court judgment in Joseph Isharat and the Gujarat High Court decision in Niharika Jain are not binding on this Court even though they are having persuasive effect. As already concluded earlier the Division Bench Judgment in M s. Ganpati Dealcom Pvt. Ltd is binding upon this Court even though the operation of the said judgment has been stayed by the Supreme Court. Accordingly I am prima facie of the opinion that the writ petitioners are entitled to interim orders at this stage. However I am of the further view that the Revenue is to be protected as the matter is sub judice before the Supreme Court. Accordingly the following interim orders are passed: A. The reference referred to in Section 24(5) of the 1988 Act shall not be treated as final and shall only be treated as provisional during the whole period the writ applications are pending before this Court. B. Subject to its result the reference will be treated as final. Thereafter time to pass the adjudication 21 order under Section 26(7) of the 1988 Act will to run. Hence respondent authorities will not take any further steps in the matter till the disposal of these writ C. The writ petitioners shall not sell otherwise transfer deal with encumber or part with possession of the subject properties till the disposal of these writ applications. 28. The respondent authorities are granted a period of six weeks to file their affidavits in opposition from date. Affidavits in reply if desired to be submitted by the writ petitioners be submitted within a period of two weeks thereafter. 29. All parties are to act on the official website copy of this order. |
Court granting bail should examine if prima facie case against accused is made, it is not required to appreciate evidence: High Court of Delhi | Though at the time of consideration of bail amidst trial, in-depth analysis of testimonies of witnesses and scientific and medical evidence on record is not to be done, however, while considering an application for bail a prima facie opinion has to be formed and for doing so, a number of factors have to be borne in mind such like nature of the offense, the seriousness of the charge and whether continued detention of accused in judicial custody during trial shall meet or defeat the ends of justice. This was held in AKSHAY KANOTRA v. State NCT [BAIL APPLN. 1236/2021] in the High Court of Delhi by a single bench consisting of JUSTICE JYOTI SINGH. The facts are that the present case has been registered on the statement of the injured/complainant, that the petitioner offered him a spiked drink and took him to a deserted place and attacked him with a paper cutter kind knife on his neck. The charge sheet for the offenses under Sections 307/328/392/397 IPC was filed against the petitioner. Petitioner is in judicial custody since his arrest and has approached this Court seeking bail. The counsel for the petitioner submitted that the MLC of the complainant does not mention any symptoms or influence of sedatives. There is undue delay in obtaining the MLC and due to lack of scientific and medical evidence, the charge under Section 328 IPC cannot sustain against the petitioner. Testimony of the injured/complainant has contradictions and that he is not a reliable witness. The counsel for the respondent submitted that the Additional Public Prosecutor appearing on behalf of respondent submitted that petitioner has committed a heinous crime of attempt to murder and his previous bail applications have been dismissed by the trial there is no change of circumstances and thus the petition deserves to be rejected. The urine report of the injured/complainant showed the presence of Barbiturates &. Benzodiazepine and if released on bail, there are chances of petitioner influencing and threatening the public witnesses. The court made reference to the judgment by the Supreme Court in the case of Mahipal Vs. Rajesh Kumar, wherein the following observations were made,“14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 29.04.2021 Pronounced on: 07.05.2021 BAIL APPLN. 1236 2021 AKSHAY KANOTRA Petitioner Through: Mr. Manu Sharma Mr. Kartik Khanna Mr.Vijay Singh & Mr.Abhyuday Sharma Advocates Respondent Through: Mr.Amit Chadha Additional Public Prosecutor for State with SI Ashok Ahlawat & SI Hemant HON BLE MR. JUSTICE SURESH KUMAR KAIT Petitioner is in judicial custody since his arrest on 27.02.2018. He has been charged for the offences under Sections 307 328 364 379 IPC by the learned trial court in FIR No. 89 2018 registered at police station Vikas Puri New Delhi and is facing trial for the same. Petitioner has approached this Court seeking bail while claiming that he has been falsely implicated and no offence as alleged is made out against him. Further ground taken is that main charge sheet as well as BAIL APPLN. 1236 2021 supplementary charge sheet in this case have been filed which casts a doubt on the involvement of petitioner in the instant case. The present case has been registered on the statement of injured complainant Rahul Malik. In his complaint he has stated that he is working as Property Dealer and he knew petitioner accused since his school days who was working as Agent for purchase and sale of second hand cars. Transaction of money between the two was common and as such he had lent Rs.7.00 Lacs to the petitioner. Further stated in the complaint that on 25.02. 2018 he received two three calls from the petitioner saying that petitioner had received amount of Rs.2.5 Lacs in his account and wanted to return to him. Since complainant injured had to go to Green Park to collect his payment from one Panna Lal he asked petitioner to accompany him. They both went together and on the way petitioner offered him maaza drink which he had bought from a pan shop and after some time injured complainant’s head started spinning badly and he got into semi stage. Petitioner offered to drive home and asked injured complainant to sit on conductor seat. After some time when injured complainant gained consciousness he found himself in a deserted place and realized that petitioner was attacking him with a paper cutter kind BAIL APPLN. 1236 2021 knife on his neck. According to injured complainant he tried to handle himself but petitioner made a second attempt to strike cutter on his neck and while he tried to defend himself by putting his left hand forward petitioner hit the cutter in his hand. Thereafter petitioner tried to hit him on his head with a stick kept in the car but injured complainant opened the door of the car and started running on the road. Petitioner again attempted to hit injured complainant with a stone but he escaped and ran towards the road and asked the men standing on the road to call the police and ambulance. prosecution Constable Sandeep injured complainant to U.K. Nursing Home and public standing on the spot informed that the vehicle of the injured was parked at Chanson Motors near Keshopur Industrial Area and the injured himself had come running. HC and SI reached there and found one Maruti Swift White Colour car bearing No. DL 2C AS 9332. There were blood stains on the top of the vehicle and the conductor seat was in rest position. A paper cutter with blood stains was found lying on the rear seat. Upon further inspection of car neither amount nor any bag of papers nor mobile of injured could be found. Two bottles of petrol were found lying inside the car. A sample was also drawn from the blood stained seat of the car as also from the gear of the car. BAIL APPLN. 1236 2021 5. team members of the police team injured complainant from U.K.Nursing Home to Mata Chanan Devi Hospital and further to Venketeshwar Hospital Dwarka where his MLC was prepared. Thereafter statement of injured was recorded and the FIR in question was registered. The blood stained clothes of the injured and the samples drawn were sent to Forensic Science Laboratoryrecorded on 28.01.2020 who in his cross examination has specifically stated that Rahul Malikremained seated in his car when he met him on 25.02.2018 and categorically denied having seen any danda bag petrol bottle diesel bottle kerosine bottle paper cutter or bag inside the car. 12. Learned counsel for petitioner also drew attention of this Court to testimony of injured complainant to show various contradictions and that he is not a reliable witness. He submitted that in view of material contradictions in the testimonies of material witnesses i.e. the injured complainant and Panna Lalcharge under Section 364 IPC is not sustainable. BAIL APPLN. 1236 2021 13. Attention of this Court was also drawn to the testimony of Dr. Vinay Guptawherein he has stated that injuries could be self inflicted and has also stated that the depth of the wounds of injured complainant were not exactly measured but were rather a “measure of guess” and therefore it casts a doubt upon the entire prosecution story. 14. Learned counsel further submitted that no witness has been cited to prove that the maaza and petrol bottle were purchased by the petitioner. It was also submitted that the prosecution has not produced any fingerprint evidence to show that the alleged paper blade used during the incident was used by the petitioner. 15. Learned counsel submitted that one more FIR was registered against the petitioner but the same stands already quashed by the High Court of Punjab and Haryana. He emphatically submitted that petitioner has not misused the concession of interim bail granted to him and also that out of 13 prosecution witnesses 05 have already been examined and only public witnesses remain to be examined that too one of them namely Sanjay is not appearing despite issuance of multiple summons by the trial court. It was therefore urged that petitioner be released on bail during pendency of BAIL APPLN. 1236 2021 16. On the contrary the present petition has been vehemently opposed by Mr. Amit Chadha learned Additional Public Prosecutor appearing on behalf of respondent State by submitting that petitioner has committed a heinous crime of attempt to murder and his previous bail applications have been dismissed by the trial court as well as this Court and there is no change of circumstances and so this petition deserves to be rejected. He submitted that the FSL report filed along with the supplementary charge sheet mentions that the DNA profile generated from the samples S2 S4a S4b and S5 were found to be similar from source of exhibits S1a S1b and S1c. Learned Additional Public Prosecutor also submitted that the urine report of injured complainant from Venketeshwar Hospital showed presence of Barbiturates &. Benzodiazepine. 18. He also submitted that out of the 14 witnesses 05 prosecution witnesses examined so far have supported the case of prosecution and if released on bail there are chances of petitioner influencing and threatening the public witnesses. The arguments advanced on behalf of both the sides were considered in the light of material place on record. 20. During the course of arguments counsel representing both the sides BAIL APPLN. 1236 2021 sailed this Court through testimonies of witnesses so far examined as well as scientific and medical evidence brought on record. Though at the time of consideration of bail amidst trial in depth analysis of testimonies of witnesses and scientific and medical evidence on record is not to be done however while considering an application for bail a prima facie opinion has to be formed and for doing so a number of factors have to be borne in mind such like nature of offence seriousness of the charge and whether continued detention of accused in judicial custody during trial shall meet or defeat the ends of justice. On this aspect the pertinent observations of the Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumar 2 SCC 118 are 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 the grant of bail the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt commission of the crime by the accused. That is a matter for trial. However the Court is required to examine whether there BAIL APPLN. 1236 2021 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 to interfere and ought to be guided by the principles set out for the exercise of the power to set aside In the case in hand the allegations levelled against the petitioner are of brutally attempting to murder his childhood school friend by mercilessly cutting his throat not just in a semi conscious state but also in his consciousness and when he could not succeed and injured tried to escape he followed and tried to hit him with stone with an intention to kill him. 22. Learned counsel for petitioner has assailed the FSL report on the ground that it stands mentioned therein that upon chemical microscopic & TLC examination metallic poisons ethyl and methyl alcohol cyanide phosphide alkaloids barbiturates tranquillizers and pesticide could not be detected in exhibits S1a S1b S1c S1d S1e S1f S2 S3a S3b S4a & S 5. whereas as prosecution has relied upon the FSL report wherein it is stated that the result of biological examination mentioned in the FSL report is that the source of exhibits S2 S4a S4b S5 S1a S1b S1c were found to be BAIL APPLN. 1236 2021 similar generated from the source of exhibits S1a. Hence the FSL report does not fully support the case of petitioner. 23. Further the urine test report of complainant injured showed presence of Barbiturates & Benzodiazepine and it also negates the assertion of petitioner’s counsel that after injured complainant was brought Venketeshwar Hospital he was in conscious state of mind and not under the influence of any sedatives at the time or preparation of MLC. 24. The assertion of petitioner is that prosecution witness Panna Lalin his cross examination has stated that he did not see any danda bag petrol bottle diesel bottle kerosine bottle paper cutter or bag inside the car. However he has also stated it was after 07:00 PM when injured complainant along with petitioner met him and further stated that he could not see any revolver as it was evening time. He has also stated that he met them only for five minutes. But fact remains that in such a short time that too in the evening of winters in Delhi after around 07:00 PM what this witness could notice lying inside the car has to be analysed. 25. Dr. Vinay Guptain his cross examination has stated that the injured was in conscious state and able to narrate the incident. In fact it is the case of prosecution that the injured complainant was in semi conscious BAIL APPLN. 1236 2021 state when petitioner hit him and as he gained consciousness he tried to save his life by revolting against petitioner’s attack and running towards the road to seek public help. 26. The statement of doctor that the injuries could be self inflicted does not appeal to the court because no prudent person would put his life in danger by inflicting such grievous injuries to self and putting own life in danger and thereafter running on a road to seek public help for calling PCR and ambulance and even if this argument of petitioner is accepted petitioner has to bear the burden to prove it during trial as to in what circumstances injured complainant did so and it is not for this Court to form an opinion at 27. Further assertion of petitioner that Dr. Vinay Gupta in his statement has stated that in the MLC depth of injuries were mentioned on guess and exact depth was not measured does not come to rescue of petitioner as the same shall be analysed at the conclusion of trial and onus is upon the prosecution to establish how the MLC demolishes the case of this stage. 28. Considering the bail application of petitioner it would be too soon to comment upon the testimonies of the witnesses so far examined. The BAIL APPLN. 1236 2021 Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumarhas further held as under: “14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court such an order granting bail is liable to be set aside. The Court is required to factor amongst other things a prima facie view that the accused had committed the offence the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether on an analysis of the record it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the BAIL APPLN. 1236 2021 court to examine in detail the evidence on record to come to a conclusive finding.” 29. The learned trial court vide order dated 03.03.2020 has rightly dismissed petitioner’s application for bail observing that evidence is not to be appreciated mid way and moving bail application every now and then shall not dilute this settled law. 30. Pertinently before this Court also this is the fourth bail application filed by the petitioner. His first bail application was dismissed as withdrawn on 10.01.2020 with liberty to seek interim bail before the trial court. His second bail applicationwas also dismissed as withdrawn vide order dated 07.02.2020 with liberty to file fresh before the trial court. His third bail application was dismissed on 10.08.2020 in view of the fact that he was granted interim bail by the trial court on 07.07.2020. Hence the last resort to bail adopted by the petitioner that he is languishing in jail since the day of his arrest i.e. 27.02.2018 also does not appeal to this Court as by virtue of order dated 07.07.2020 petitioner was enlarged on interim bail to attend marriage of his brother and thereafter due to Covid 19 pandemic his interim bail stood extended under various orders of Hon’ble Supreme Court as well as this Court and he has surrendered only on 26.03.2021. BAIL APPLN. 1236 2021 31. This Court also cannot lose sight of the fact that out of 13 witnesses only 05 witnesses have been examined so far and testimony of public witnesses is yet to be recorded and apprehension of influencing or threatening the witnesses has been expressed by the prosecution. 32. Keeping in mind the pertinent observations of the Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumar and facts and circumstances of this case this Court is not inclined to release petitioner on bail at this 33. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information. JUDGE MAY 07 2021 BAIL APPLN. 1236 2021 |
The Courts are expected to exercise judicial restraint in interfering with the administrative action: High Court of J&K and Ladakh | Ordinarily, the soundness of the decision taken by the tender issuing authority ought not tobe questioned, but the decision-making process can certainly be subject to judicial review. The Courts are expected to exercise judicial restraint in interfering with the administrative action, particularly in the matter of tender or contract as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr Justice Ali Mohammad Magrey in the case of Firdous Kamran Shora Vs Union of India & Ors [WP(C) No. 1330/2021 c/w CCP(S) No. 356/2021]. In this case, Mr A. H. Naik, the learned Senior Counsel representing the Petitioner, submitted that the action and inaction on the part of the Respondents in determining the contract between the parties and changing the site, that too, without negotiating with the Petitioner amounts to arbitrary exercise of power, aimed at giving undue benefit to some other blue-eyed contractor(s). It was submitted that there was no agreement executed between the parties, therefore, there was no question of invoking any clause of the agreement which was not in existence. Objections stand filed on behalf of Respondents 2 and 3. It was stated that the BSNL, Civil wing, was assigned the responsibility of execution of NFS project by the Department of Telecommunication (Government of India). The Project, as stated, was meant for enhancing the communication system of the Army and is of national importance as the project site is located at a highly sensitive strategic area of LOC. It was pleaded that the Petitioner was awarded the contract for timely execution, but he, despite repeated reminders, did not execute the same on time, constraining the Respondents to take the impugned action against the Petitioner and re-tender the work, therefore, no interference was warranted in the said process from this Court. After the court had heard the learned counsel for the parties, perused the pleadings on record and considered the matter. Then the court had gone through the relevant records made available by the learned Senior Counsel representing the Respondents 2 and 3. The Hon’ble High Court was of the view that law on the subject of scope of judicial review in the matters of Contract is no more res integra. The court relied on the Judgments in cases of Tata Cellular V. Union of India: (1994) 6 Supreme Court Cases 651, Sterling Computers Limited V. M&N Publications Ltd: (1993) 1 SCC 445, Directorate of Education & Ors. V. Educomp Datamatics Ltd. And Ors: (2004) 4 SCC 19 to conclude that what comes to limelight is that the modern trend points to judicial restraint in administrative action and that the Court does not sit as a ‘Court of Appeal’, but merely reviews the manner in which the decision was made. In conclusion, it was stated that “It has also been declared that Court does not have the expertise to correct the administrative decision and that if a review of the administrative decision is permitted, it will be substituting its own decision, and without the necessary expertise which itself may be fallible. Furthermore, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” | HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 Firdous Kamran Shora Dated: 24th of September 2021. … Petitioner(s) Union of India & Ors. … Respondent(s) Mr A. H. Naik Senior Advocate with Mr Tawheed Ahmad Advocate. Through: Mr Tahir Majid Shamsi ASGI for R 1 and Mr N. A. Beig Senior Advocate with Mr Sofi Manzoor Advocate for R 2 & 3. Hon’ble Mr Justice Ali Mohammad Magrey Judge. In the instant Petition the Petitioner is aggrieved of Notice No. 658 EE DIV SGR 350 dated 5th of July 2021 as well as the impugned tender Notice bearing NIT No.12 EE DIV SGR 2021 22 dated 7th of July 2021 issued by the Respondent No.3. Mr A. H. Naik the learned Senior Counsel representing the Petitioner submitted that the action and inaction on the part of the Respondents in determining the contract between the parties and changing the site that too without negotiating with the Petitioner amounts to arbitrary exercise of power aimed at giving undue benefit to some other blue eyed WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 contractor(s). It is submitted that there was no agreement executed between the parties therefore there was no question of invoking any clause of the agreement which was not in existence. Objections stand filed on behalf of Respondents 2 and 3. It is stated that the BSNL Civil wing was assigned the responsibility of execution of NFS project by the Department of Telecommunication No. 1330 2021 c w CCP(S) No. 356 2021 be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned firstly if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or second if the process adopted or decision made by the authority is malafide or intended to favour someone or third if the public interest is affected. In the case on hand when the Petitioner firm did not fulfil all the terms and conditions prescribed by the Respondents with regard to completion of the project on time despite repeated reminders in such eventuality the decision of the Respondents in issuing the impugned communication and putting the work to fresh tender cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Furthermore a bare perusal of the pleadings on record does not indicate that the decision made by the authority is malafide or intended to favour someone. In fact the decision of the Respondents was the result of non completion of the Contract on time on part of the Petitioner more so when the entire project was located at a highly sensitive and strategic area of LOC. Likewise the third ground of public interest is also not affected in the present case because while it may be in public interest to have greater competition it is also in public interest that all the tender conditions are complied with as prescribed by the tender issuing authority and that there is no uncertainty in that area. WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 Law on the subject of scope of judicial review in the matters of Contract is no more res integra. In case titled ‘Tata Cellular V. Union of India: 6 Supreme Court Cases 651’ at Paragraph No.94 Hon’ble the Supreme Court of the country while dealing with the issue similar to the one subject matter of the instant Petitions evolved the following principles: 1. “The modern trend points to judicial restraint in administrative action 2. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made 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 expe4rtise 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 experts 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 reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides and 6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” In case ‘Sterling Computers Limited V. M&N Publications Ltd:1 SCC 445’ the Apex Court at Paragraph No.12 has laid down as under: WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 “In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts such decisions are upheld on the principle laid down by Justice Holmes that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive." Again the Apex Court in case titled ‘Directorate of Education Ors. V. Educomp Datamatics Ltd. And Ors: 4 SCC 19’ while applying the principles enunciated in Tata Cellular’s case at Paragraph No.12 observed thus: “12. It has been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary discriminatory malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair wise or logical. The Courts can interfere only if the policy decision is arbitrary discretionary or malafide.” On an appreciation of the law laid down above what comes to limelight is that the modern trend points to judicial restraint in administrative WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 action and that the Court does not sit as a ‘Court of Appeal’ but merely reviews the manner in which the decision was made. It has also been declared that Court does not have the expertise to correct the administrative decision and that 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. Furthermore fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. It is thus settled that public authorities must be left with the same liberty as they have in framing the policies even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution of India in many cases for years. It is for this reason that the Courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by Courts WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 while dealing with public property. It is not possible for the Courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract by giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bonafide manner although not strictly following the norms laid down by the Courts such decisions are upheld on the principle laid down by Justice Holmes that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive. Looking at the instant case in the above perspective the Petitioner has not been able to establish before the Court that the decision taken by the Respondents putting the works in question to fresh tenders is an arbitrary exercise of power or that the same was is malafide in nature. In ‘Jagdish Mandal v. State of Orissa:14 SCC 517’ at Paragraph No.22 the Hon’ble Supreme Court held thus: “22. …. Therefore a Court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 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.” From a bare perusal of the pleadings placed on record as well as after going through the relevant records placed before the Court by the Respondents it is more than apparent that the decision taken by the Respondents in putting the work in question to fresh tenders was certainly not irrational in any manner whatsoever or intended to favour anyone. This decision apart from being lawful and sound appears to have been taken by the Respondents in view of non acceptance of all the terms and conditions of contract on part of the Petitioner. For all that has been said and done hereinabove I do not find any merit in this Petition. It entails dismissal and is accordingly dismissed. Interim direction(s) if any subsisting as on date shall stand vacated. Pending miscellaneous applications if any shall also stand disposed of accordingly. No order as to costs. WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 The relevant record as produced by Mr Beig the learned Senior Counsel representing the Respondents 2 and 3 is returned to him in the open CCP(S) No. 356 2021: This Contempt Petition is filed alleging violation of ad interim Order dated 14th of July 2021 passed in WP(C) No. 1330 2021. In view of the dismissal of the Writ Petition wherein the interim Order was passed as above the Contempt Petition has turned infructuous which shall stand closed as such. Registry to place a copy of this Judgment on each file. September 24th 2021 Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking |
Private interest must give way to Public interest: High Court of Jammu & Kashmir | “That government of the people, by the people, for the people, shall not perish from the earth”. Lincoln’s address was a vital definitive for what stands as an affirmation in any major democratic stances. The ‘Rule of people’ has obvious accountability towards the public. Public interest paramount’s every conflict. The Jammu and Kashmir High Court presided over by Hon’ble Chief Justice Rajesh Bindal and Hon’ble Justice Javed Iqbal Wani laid this ratio in the case of Omesh Singh V/s State of Jammu & Kashmir, [OWP 1699 of 2017]. In the instant case, Court was dealing with writ appeal challenging the acquisition of certain land for construction of Hewogan-Dhanmasta road at village Dhanmasta Tehsil Poghan and District Paristan under PMGSY Scheme. Later on, it was observed that the alignment of 3 km long road might damage around 100 households, therefore steps were being taken to realign the constructed road which eventually got approval from Central government. In the first instance, writ petition was being filed by few people who were neither the land owners nor the residents, opposing the land acquisition, which eventually got dismissed by the High court. High court considered all the arguments of the petitioners to be hypothetical and a non-substantial reason for grievance. HC stated that “A Perusal of the record of the case makes it abundantly clear and demonstrable that in the whole process of acquisition undertaken by the official respondents it had been less than 10 numbers of writ petitioners who felt aggrieved thereof when most of the other land owners/ residents seemingly did not challenge the said acquisition. In such kind of a situation striking a lethal blow to the entire proceedings while invoking extraordinary writ jurisdiction had been found not to be advisable by the Apex Court”. The HC highlighted that the matters of land acquisitions should not fall within the court’s domain unless it is ex facie contrary to law or tainted with palpable malafides. The Court relied on past judgments passed by The Supreme Court of India such as ‘Ramniklal N. Bhutta Vs. State of Maharashtra and others’[AIR 1997 SC 1236]’, ‘Pratibha Nema Vs. State of MP [AIR 2003 SC 3140]’ and ‘Union of India v. Dr. Kushala Shetty & others [(2011)12 SCC 69]’ where the court dealt with somewhat similar situations of case dismissal in the matters of Land Acquisition. | HIGH COURT OF JAMMU AND KASHMIR LPA No. 268 2019In OWP 1699 2017) Through Video Conferencing) Decided On: 28.12.2020 Through: Mr.K. S. Johal Sr.Advocate with Mr Karman Singh Johal Advocate. Omesh Singh and Others State of J&K and Others Through: Mr. S. S. Nanda Sr. AAG. CORAM: HON’BLE THE CHIEF JUSTICEof the State Land Acquisition Act SVT 1990notifying therein land proposed to be acquired for construction of Hewagon Dhanmasta road under PMGSY Scheme package No. JK04 101. Since the alignment qua the construction of aforesaid road was found to Page 2 LPA No. 268 2019 cause damage to number of residential houses as well as land as such realignment of the takeoff of point of road in question got necessitated which realignment came to be approved by the Government of India upon being recommended by the Government of Jammu and Kashmir after obtaining an opinion of the experts in the matter. The appellants herein after filing their objections under section 5 A of the Act inasmuch as availing an opportunity of being heard provided by the official respondents felt aggrieved of the notification dated 23.12.2016 supra inasmuch as the process of acquisition undertaken by the official respondents and instituted writ petition being OWP No. 1699 2017 out of which the instant appeal has arisen after the said writ petition came to be dismissed by the writ court vide judgement dated 17.08.2019 impugned in the present appeal. Before examining the validity or otherwise of the impugned judgement it would be appropriate to refer to in brief the case setup by the writ petitioners appellants and both official as well as private respondents here under: Appellants contentions The appellants writ petitioners contentions in the writ petition as noticed by the writ court are extracted here under: a) The petitioners who are residents of Revenue Village Dhanmasta Tehsil Pogal Paristan District Ramban are dependent upon the small land holdings which they possess. Page 3 LPA No. 268 2019 b) The respondent No. 3 issued notification u s 4(1) of Acq PMGSY 16 525 34 dated 23.12.2016 notifying therein that the land mentioned therein is required for public purpose namely for construction of Hewogan Dhanmasta first 3.00 km under PMGSY at village Dhanmasta Tehsil Poghal Paristan District. c) The petitioner No. 11 got the knowledge of the issuance of the aforesaid notification dated 23rd of December 2016 through passersby and immediately efforts were made to find out whether any such Notification had been issued. In pursuance of the application filed under Right to Information Act the Notification which was published in the newspaper d) Hewagon Dhanmaasta road was sanctioned under package No. JK04 101. Since the construction of road from Hewagon to Dhanmasta was causing damage to the property and residents of the area the Collector Land Acquisition recommended that high level team to be constituted to explore the possibility of alternate takeoff point of the road. The respondents brought the issue to the knowledge of the concerned authorities who instead of permitting the alternate takeoff point permitted the respondents to change the alignment. An application under Right to Information Act was filed on 4th of December 2013 seeking certain information from Public Information Officer office of Executive Engineer PMGSY Division Banihal District Ramban and in reply thereto the respondents was provided. Page 4 LPA No. 268 2019 furnished the information that the proposal of the road was under process. It has further been pleaded that the primary object of PMGSY was providing the road connectivity which is only key component of Rural Development for promoting the access to economic and social services. The idea of rural connectivity is that it must increase the income and lead to productive employment opportunities for ensuring sustainable poverty reduction. The government was trying to deprive the petitioners from their agricultural and residential land. e) The non consideration of the objections filed by the petitioners to the acquisition proceedings and the problems likely to be faced by them had given the cause to the petitioners to file the instant petition. f) The road from Hewagon to Dhanmasta has already been constructed up to almost 1 Km on the original sanction incurring an expenditure of more than Rs. 60 lakh. The manner of undertaking the construction work in hilly terrain reflects the non application of mind on the part of the respondents and misuse of public money which has benefitted only respondents and the contractors. Not only this the to be affected should also have been associated with the decision making process in the democratic setup. The authorities must not be in a haste to take any decision bet it with regard to construction of a building road or developing any area. With regard to the roads day in and day out one hears of accidents taking place in the hilly terrain. In Page 5 LPA No. 268 2019 the excitement and enthusiasm the so called experts in construction of government roads and buildings and decision making process fail to consider understand the finer details and repercaution it may lead in case the works are not started after taking all aspects into consideration. The result of execution of the work during the Maharaj‟s time and the engineers and other officers engaged in the construction of the roads then shows due application of mind by the then authorities as compared to the authorities at the helm of affairs in the present times. The outlay of the buildings and construction thereof and sites chosen as also the roads constructed appear to ensure that it becomes a regular source of income to those forming a nexus for extraneous considerations. g) Along with the documents received under RTI Act letter No. ACQ PMGSY 17 539 40 dated 30.08.2017 is a letter annexed therewith is the letter dated 18th of October 2016 regarding approval of the competent authority to change the alignment of road work namely L059 Hewagon Dhanmasta in Ramsoo Block sanctioned under PMGSY in the year 2006 2007 The respondents in past also changed the alignment whether any sanction was granted by the competent authority for change of alignment at that stage or the respondents changed the alignment on their own is required to be confirmed from the Page 6 LPA No. 268 2019 h) The issuance of notification under Section 4of the Land Acquisition Act was malafide. The intention of the respondents was a change in takeoff point the appropriate authority permitted only change of event. Notification u s 4(1) would reflect that the areas which have been sought to be acquired do not fall anywhere between Hewogan and Dhanmasta inasmuch as it would require a new takeoff point and has not been authorized by the competent authority. The intention of the authorities to start a new takeoff point for construction of Hewogan Dhanmasta road with a new takeoff point is evidence and reflected in letter dated 22.08.2017 issued by the Executive Engineer PMGSY Banihal. i) Some vested interested persons and persons belonging to village Dhanmasta are keen to get the road constructed till their houses. The construction of the road therefore to say is for a public purpose is not true but only to benefit the influential persons of Village Dhanmasta. To the knowledge of the petitioners beyond their homes respondents are not being permitted to construct the road. The pick and choose method adopted by the respondents and the persons with vested interests shows that they are hell bent upon dispossessing the petitioners of their land and uprooting them from the settled positions and habitation. j) The petitioners had earlier filed a writ petition being OWP No. 844 2014 titled Omesh Singh and others Vs State of J&K and others challenging the action of the Page 7 LPA No. 268 2019 respondents for constructing the road which was without any authorization. This court vide order dated 12.06.2014 directed the respondents not to interfere in the peaceful possession of the petitioners without following due course of law and remove all the machinery brought on the said land with the purpose of construction of the road. k) Pursuant to the issuance of notification under Section 4(1) of the Land Acquisition act the respondents have proceeded to continue the proceedings under Sections 6 7 and 17 and notice under Section 9 and 9A of the J&K Land Acquisition Act issued by the office of Collector Land Acquisition Ramban bearing No. 10 ACR of 2017 18 informing all interested persons that the government of J&K intends to take possession of the land measuring 74 kanals and 19 marlas at village Dhanmasta Tehsil Pogal Paristan District Ramban constructionof Hewogan l) The respondents are not transparent in their dealings and it appears that these tactics are being adopted only for coercing the petitioners to give up their rights in their properties for which no authorization has been granted to the respondents. Dhanmasta Road. Contentions of respondent No. 3 The respondent No. 3 has contended before the writ court as noticed by it that the road in question had been sanctioned under the package No. JK04 101 and that at the initial takeoff point more than 100 Page 8 LPA No. 268 2019 number of families were likely to be affected due to the construction of the said road necessitating change of alignment of takeoff point and after the said change of alignment there was no possibility the petitioners would get The respondent No. 3 has further contended before the writ court that the petitioners filed objections under section 5 A of the Act in response to notification dated 23.12.2016 whereupon the petitioners were provided an opportunity of being heard and that a detailed report was submitted by respondent No. 3 to the Government of Jammu and Kashmir Revenue Department vide letter dated 09.08.2017 for issuance of declaration under sections 6 7 and 17 of the Act which came to be issued on 13.09.2017. The respondent No. 3 has further contended before the writ court as noticed by it that approval to the change of alignment of the road came to be accorded by the Government of Jammu and Kashmir on 08.10.2016 and that the notifications under section 9 and 9 A came to be properly circulated besides publishing it in local newspapers. The respondent No. 3 has next contended before the writ court that regarding the change of alignment Government of India approved the same and that after issuance of notification under section 4(1) further proceedings were continued as per the provisions of the Act only after proper hearing was provided to the petitioners under section 5 A of the Act. Page 9 LPA No. 268 2019 Contentions of the private respondentsThe private respondents seemingly have been impleaded as respondents in the writ petition upon laying a motion and the said respondents have contended before the writ court that the revenue village Dhanmasta comprises of 3 Panchayat Halqas namely Dhanmasta A Dhanmasta B and Dhanmasta C and that in most of the panch constituencies of the said panchayat halqas being hilly terrain and sloppy had no road connectivity and the residents are declared as residents of backward area under Reservation Act and Rules made there under and that due to non availability of road connectivity the residents of the area including children and students have been suffering . The private respondents have further contended before the writ court as noticed by it that the road in question had been sanctioned in the year 2006 and was seriously objected by residents of 3 villages namely Hewagon Inyar and Sirlan regarding its alignment and that upon the said objection was found to be genuine by the officials possibility of alternate takeoff point came to be explored and finally approval granted thereto by the Government of India Ministry of Rural Development Rural Connectivity Division Krishi Bhawan New Delhi upon receiving a recommendation thereof from the Government of Jammu and Kashmir. The private respondents had next contended before the writ court that the road from habitation Khudmulla upto the destination i.e. Dhanmasta had already been constructed and Crores of rupees spent and that only the Page 10 LPA No. 268 2019 road from new takeoff point upto Khudmulla being approximately 3 kilometers is yet to be started. The said road is said to benefit 10 000 souls of the area. 12. Heard learned counsel for the parties and perused the record. The learned counsel for the appellants made his submissions in line with the grounds urged in the memo of appeal against the impugned judgement and prayed for setting aside of the same as also grant of reliefs prayed in the writ petition whereas the learned counsel for the respondents while making their respective submissions in opposition to those made by the counsel for the appellants defended the judgement under challenge in tune with the stand taken in the objections filed before the writ court. Before adverting to the rival submissions of the learned counsel for the parties this court deems it appropriate to refer few decisions of the Hon‟ble Apex Court being relevant and germane hereto. It is settled law that the wherever there is conflict between the private interest and the larger public interest the later prevails over the former. The private interest must give way to the public interest and the same should stand subordinate to public good. The Apex Court in “Ramniklal N. Bhutta and another Vs. State of Maharashtra and others” reported in AIR 1997 SC 1236at para 10 has noticed as follows: “Before parting with this case we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an Page 11 LPA No. 268 2019 advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries referred to as “Asian tigers” e.g. South Korea Taiwan and Singapore. It is however recognized on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation power and communications are in dire need of substantial improvement expansion and modernization. These things very often call acquisition of land and that too without any delay. It is however natural that in most of these cases the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably stay of acquisition is asked for an in some cases orders by way of stay or injunction are also made. Whatever may have been the practices in the past a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit granting of injunction or other similar orders more particularly of an interlocutory nature is equally discretionary. The courts have to weigh the public Page 12 LPA No. 268 2019 interest vis a vis the private interest while exercising the power under Article 226 indeed any of discretionary powers. It may even by open to the High Court to direct in case it finds finally that the acquisition was vitiated on account of non compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to the awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong quashing the acquisition proceeding is not the only mode of redress. To wit it is ultimately a matter of balancing the competing in interests. Beyond this it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts dealing with proceedings.” “When no prejudice has been demonstrated nor could be reasonably inferred it would be unjust and inappropriate to strike down the Notification under Section 4(1) on the basis of a nebulous plea in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out the constitutional courts in exercise of jurisdiction under Article 226 or 136 should not as a matter of course deal a lethal blow to the entire proceedings based on theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and 15. The Apex Court in “Pratibha Nema Vs. State of MP reported in AIR 2003 SC 3140” has noticed as under: Page 13 LPA No. 268 2019 substantial grievance is made out the non redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose especially in a matter like this where it is possible to take two views is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice.” The Hon‟ble Apex Court in a case titled as Union of India v. Dr. Kushala Shetty & others reported inand upon a perusal of the record of the case in hand indisputably what emerges there from is that the official respondents initiated acquisition proceedings qua land in question by issuance of a notification under section 4dated 23.12.2016 of the Act for construction of road in question under PMGSY Scheme 2016 17 and that the appellants had raised objection thereto whereupon after affording personal hearing to all concerned including the petitioners a detailed report came to be submitted by the Collector respondent No. 3 to the Revenue Department on 09.08.2017 for issuance of a declaration under sections 6 7 and 17 which came to be accorded on 13.09.2017. What emerges further is that official respondents found that at the initial takeoff point of the proposed road more than 100 number of families were likely to be affected due to the construction of the said road which necessitated change of alignment of takeoff point. The aforesaid change of alignment has been approved by the Government of India Ministry of Rural Development Department Rural Connectivity Division Krishi Bhavan New Delhi vide communication dated Page 15 LPA No. 268 2019 26.09.2019 conveyed to Public Works Department Government of Jammu and Kashmir after the official respondents examined the matter thoroughly and recommended the change of alignment to the Government of India. The grievances lodged by the appellants writ petitioners before the writ court qua the notification under section 4(1) inasmuch as the grievance about damage likely to be suffered by them on account of the acquisition of land for public purpose viz construction of road in question admittedly are shown to have been addressed by the official respondents upon filing of their objections under section 5 A of the Act inasmuch as while affording them an opportunity of hearing. The contentions and grievances raised and lodged by the writ petitioners appellants in regard to above have been lucidly and validly dealt with by the writ court in the impugned judgement turning down the said contentions and grievances. The perusal of the record of the case tend to show that the grievances and allegations so raised and alleged by the appellants petitioners are theoretical and hypothetical and not real and substantial in nature. Further a perusal of the record of the case reveals and suggests that neither any prejudice to the appellants writ petitioners is demonstrable nor could same be reasonably inferred qua the acquisition proceedings undertaken by official respondents in furtherance of a public purpose viz construction of a much needed road serving the needs of thousands of people of the area as against less than 10 appellants writ petitioners herein. Thus in Page 16 LPA No. 268 2019 view of the observation of the Hon‟ble Apex Court in Pratibha Nema’s casesupra striking down the notification under section 4(1) of the Act in the facts and circumstances of the case would be unjust and inappropriate. The allegations of malafides alleged by the writ appellants writ petitioners herein qua the whole process of acquisition in question also has been very well dealt with by the writ court in the judgement under challenge leaving no scope for this court to intervene and interfere thereto. Lastly it goes without saying that the consistent view of the constitutional courts in the matters of land acquisitions has been that the viability or feasibility in the process of acquisition does not fall with the domain of courts unless it exfacie is found to be contrary to law or is tainted with palpable malafides. Reference in this regard to the judgement of the Apex court titled as “State of UP and Ors Vs. Johri Mal reported in 2004) 4 SCC 714 would be advantageous wherein following has been observed: “The scope and extent of power of the judicial review of the High Court contained in Article 226 of Constitution of India would vary from case to case the nature of the order the relevant statue as also the other relevant factors including the nature of power exercised by the public authorities namely whether the power is statutory quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is Page 17 LPA No. 268 2019 not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly consideration before a judicial review court.” 22. A Perusal of the record of the case makes it abundantly clear and demonstrable that in the whole process of acquisition undertaken by the official respondents it had been less than 10 numbers of writ petitioners who felt aggrieved thereof when most of the other land owners residents seemingly did not challenge the said acquisition. In such kind of a situation striking a lethal blow to the entire proceedings while invoking extraordinary writ jurisdiction had been found not to be advisable by the Apex Court. 23. As a conspectus of what all has been noticed discussed and analyzed hereinabove judgment under challenge does not call for any interference. The instant appeal as such fails and entails dismissal. Javed Iqbal Wani) Judge Rajesh Bindal) Chief JusticeWhether the Order is speaking Whether the Order is reportable 28.12.2020 |
In case of conflict between the two organs of the State and the Statutory Rules and Regulations, the latter would prevail: Supreme Court of India | The communication of the Union of India dated 31st March 2008, vide which the President of India has granted sanction, itself reveals that the sanction is for raising two additional companies for 130 Infantry Battalion (Territorial Army) Ecological and the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence. In case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail. In that view of the matter, the AFT was not justified in rejecting the claim of the appellant. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice L. NAGESWARA RAO & Hon’ble Justice B.R. GAVAI in the matter of PANI RAM vs UNION OF INDIA AND ORS. [CIVIL APPEAL NO. 2275 OF 2019]. The facts of the case were that after serving for about 25 years in Infantry of the Regular Army, the appellant got re-enrolled in the Territorial Army as a full-time soldier while serving in Territorial Army, on 5th April 2009, the appellant was granted 10 days’ part of annual leave from 15th April 2009 to 24th April 2009, to proceed to his home, which was at a distance of a few kilometers from the Unit. After availing of the said leave, when the appellant was coming back on his scooter to rejoin his duty, on 24th April 2009, he met with a serious accident. Consequently, his right leg was amputated. Thereafter, he was shifted to the Artificial Limb Centre at Pune. On 21st October 2009, the Medical Board was held at ALC which assessed the appellant’s disability to be 80%. Thereafter, a Court of Inquiry was held from 13th November 2009 onwards to investigate the circumstances under which the appellant had sustained injury. The CoI found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence. The appellate, therefore, approached the AFT For the grant of disability pension as is applicable to the personnel of the Regular Army, but the same was denied. Therefore, the present appeal is preferred by the appellate.
The Hon’ble Supreme Court observed that an individual who is Invalided out of service on account of disability, which is Attributable or aggravated by Military Service in nonbattle Casualty and is assessed 20% or more, would be entitled to Disability Pension. The respondents are not in a position to point out any rules or regulations, which can be said to be inconsistent with Regulation No. 292 or 173, neither has any other regulation been pointed out, which deals with the Terms and conditions of service of ETF.
Additionally, the Hon’ble Supreme Court observed that a Right to Equality guaranteed Under Article 14 of the Constitution of India would also apply To a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the Dotted Line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.
Finally, the Hon’ble Supreme Court allowed the present appeal. However, there was no order as to cost.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
The Hon’ble Supreme Court observed that an individual who is Invalided out of service on account of disability, which is Attributable or aggravated by Military Service in nonbattle Casualty and is assessed 20% or more, would be entitled to Disability Pension. The respondents are not in a position to point out any rules or regulations, which can be said to be inconsistent with Regulation No. 292 or 173, neither has any other regulation been pointed out, which deals with the Terms and conditions of service of ETF.
Additionally, the Hon’ble Supreme Court observed that a Right to Equality guaranteed Under Article 14 of the Constitution of India would also apply To a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the Dotted Line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.
Finally, the Hon’ble Supreme Court allowed the present appeal. However, there was no order as to cost.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
Additionally, the Hon’ble Supreme Court observed that a Right to Equality guaranteed Under Article 14 of the Constitution of India would also apply To a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the Dotted Line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.
Finally, the Hon’ble Supreme Court allowed the present appeal. However, there was no order as to cost.
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Judgment Reviewed by: Rohan Kumar Thakur
Finally, the Hon’ble Supreme Court allowed the present appeal. However, there was no order as to cost. | The appeal challenges the judgment and order dated 10th October 2018 passed by the Armed Forces Tribunal Regional Bench Lucknowgrant of disability pension came to be dismissed. The vide which though the application for leave to appeal was After serving for about 25 years in Infantry of the in Territorial Army on 5th April 2009 the appellant was 24th April 2009 to proceed to his home which was at a distance of few kilometers from the Unit where he was coming back on his scooter to rejoin his duty on 24th April 2009 he met with a serious accident. Initially the appellant was admitted to the District Hospital Pithoragarh from where he was shifted to the 161 Military Hospital at by helicopter to the Base Hospital at Lucknow where his ‘ALC’) at Pune. On 14th September 2009 he was discharged from ALC and was granted 28 days’ sick leave with the leave he was readmitted to ALC on 11th October 2009. On assessed the appellant’s disability to be 80%. However it the injury. On 07th November 2009 the appellant was As per Regulation No. 520 of the Regulations for the Army 1987 a Court of Inquiry was held from 13th November 2009 onwards to had sustained injury. The CoI found that the injury sustained by the appellant was attributable to military Respondent No. 3 on 11th January 2010. On 25th October 2010 a recategorization Medical Board was held at ALC it as attributable to military service. Subsequently on the basis of the opinion of the Invaliding Medical Board hereinafter referred to as ‘IMB’) on 1st January 2012 the appellant was invalided out of service with 80% disability The appellant therefore approached AFT for grant of was resisted by the respondents on the ground that the appellant after discharging from mechanized infantry as a pensioner was reenrolled in 130 Infantry Battalion Territorial Army) Ecological Task Force Kumaon on 1st appellant which resulted into 80% disability was found by the military service rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the Members of Ecological Task Force appellant and as such he was not entitled to disability judgment and order dated 10th October 2018 wherein the “Whether the terms and conditions of service of a member of the Territorial Army during the period of his embodiment with the T.A. will be governed by the statutory rules which provide for orders which deny the grant of the disability The AFT vide order dated 31st October 2018 though the aforementioned MOD letter dated 31.03.2008 9. We have heard Shri Siddhartha Iyer learned Counsel appearing on behalf of the appellant and Shri Vikramjit Banerjee learned Additional Solicitor General appearing on separate terms and conditions were provided by it vide communication dated 31st March 2008 which provides that the members of ETF would not be entitled for disability pension. Vide the said communication the Government of India has communicated to the Chief of Army Staff the companies for 130 Infantry Battalion Pension entitlement of Territorial Army personnel earned for the earlier regular Army 12. The respondents also rely on a document titled 1) Every officer when doing duty as such officer and every enrolled person when called out or embodied or attached to the Regular Army] shall subject to such adaptations and modifications as provisions of the Army Act 1950 and the rules or regulations made thereunder in the same manner he holds for the time being in the Territorial person in Territorial Army when holds the rank shall be regulations made thereunder equivalent to the same rank in 15. Chapter 5 of the Pension Regulations for the Army “292. The grant of pensionary awards to the the corresponding personnel of the Army except It could thus be seen that the grant of pensionary awards to the members of the Territorial Army shall be 17. Chapter 3 of the Pension Regulations for the Army 1961 deals with Disability Pensionary Awards in which “173. Primary Conditions for the grant of Unless otherwise specifically provided a disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military invalided out of service on account of disability which is attributable or aggravated by Military Service in nonbattle other regulation been pointed out which deals with the 19. The communication of the Union of India dated 31st March 2008 vide which the President of India has two additional companies for 130 Infantry Battalion It is thus clear that the ETF is established as an persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army 1961. When the appellant is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial the disability pension. Specifically so when the Medical In case of conflict between what is stated in internal the Statutory Rules and Regulations would prevail. In that view of the matter we find that AFT was not justified in 22. The respondents have heavily relied on the document dated 30th August 2007 titled “Certificate”. No doubt that agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force pension and not disability pension. As already discussed Army Act 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army 1961 would show that a pension. In any case in this respect even accepting that the Central Inland Water Transport Corporation Limited “89. We have a Constitution for our country Constitution and the laws”. The Constitution was social and economic justice. Article 14 of the Constitution guarantees to all persons equality justice and conforms to the mandate of the great the courts will not enforce and will when called upon to do so strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining bargains of this type. No court can visualize the men. One can only attempt to give some illustrations. For instance the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply apply where a man has no choice or rather no meaningful choice but to give his assent to a of the contract however unfair unreasonable and rules may be. This principle however will not apply where the bargaining power of the contracting infrastructural organizations and with the State there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and As held by this Court a Right to Equality guaranteed rules as part of the contract however unfair unreasonable the country and retired from Regular Army seeking re employment in the Territorial Army have an equal 24. The present appeal is therefore allowed and the in O.A. No. 149 of 2018 is quashed and set aside. The pension to the appellant in accordance with the rules and regulations as are applicable to the Members of the Territorial Army with effect from 1st January 2012. The respondents are directed to clear arrears from 1st January |
Where there is similarity of non-descriptive or nonessential parts of the trademarks, injunction cannot be granted: High Court of Delhi | The intent behind Section 17(2) is to prevent abuse by a person who gets a composite mark registered in its favour, which includes a non-distinctive component. Where there is similarity of non-descriptive/nonessential parts of the trademarks, injunction cannot be granted under Section 17of the Trade Marks Act, 1999 and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE AMIT BANSAL in the case of SOOTHE HEALTHCARE PRIVATE LIMITED vs. DABUR INDIA LIMITED [CS(COMM) 18/2022] on 03.03.2022. The facts of the case are that Plaintiff’s company is in the business of manufacturing, marketing and trading all goods relating to personal hygiene including sanitary preparations and allied products. Thereafter, the plaintiff ventured into the manufacturing and trading of diapers and obtained trademark registrations in its favour for the marks ‘SUPER CUTESTERS’, ‘SUPER CUTES’ and ‘SUPER CUTEZ’. The trademarks gained immense popularity and reputation in relation to the products amongst the plaintiff’s consumers and the general public. The defendant’s company, then, ventured into the business of ‘baby diapers’ adopting a trademark ‘SUPER PANTS’, which is deceptively similar to the various trademarks of the plaintiff company, in respect of which the plaintiff is a registered proprietor. The present suit is filed on behalf of the plaintiff alleging infringement as well as passing off on behalf of the defendant of the trademarks of the plaintiff along with an application under Order XXXIX Rule 1 and 2 of the CPC for interim injunction. The plaintiff’s counsel submitted that the trademarks ‘SUPER CUTESTERS’, ‘SUPER CUTES’ and ‘SUPER CUTEZ’ are registered trademarks of the plaintiff and since the defendant is using deceptively similar trademark of “SUPER PANTS” in respect of identical goods i.e., diapers, the plaintiff is entitled to grant of injunction in terms of Sections 28, 29 read with Section 31 of the Trade Marks Act, 1999. The defendant’s counsel submitted that the word ‘SUPER’ is a laudatory word and usage of the word ‘SUPER’ by the defendant is in a laudatory and a descriptive manner. The mark ‘SUPER’ is common to the trade and is commonly used by various other manufacturers of diapers. It was further contended that rights conferred by registration under Section 28 are not absolute and are subject to other provisions of the Act. In terms of Section 9(1)(a) and 9(1)(c), the mark ‘super’ is not entitled for registration. Reliance was placed on Section 30 (2) (a) of the Act to contend that since the word ‘SUPER’ is being used in a descriptive manner. The Court held that the mark ‘super’ is devoid of any distinctive character and not capable of distinguishing the goods of the plaintiff. Therefore, in view of Section 17(2) of the Act, the plaintiff shall not have any exclusive right in respect of the mark ‘super’. The Court observed that, “the intent behind Section 17(2) is to prevent abuse by a person who gets a composite mark registered in its favour, which includes a non-distinctive component. Where there is similarity of non-descriptive/nonessential parts of a mark, injunction cannot be granted.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 25th February 2022 Judgment Delivered on : 03rd March 2022 SOOTHE HEALTHCARE PRIVATE LIMITED Through: Mr. Anant Bhushan Advocate. Plaintiff CS(COMM) 18 2022 DABUR INDIA LIMITED ..... Defendant Through: Mr. Hemant Singh Mr. Manish Kumar Mishra Ms. Akansha Singh Mr. Shakti Priyan Nair and Mr. Srinivas Venkat Ragan Advocates. HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. I.A. No. 444 2022By way of the present judgment I propose to decide the application filed on behalf of the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure 1908for grant of interim injunction pending the disposal of the suit. The plaintiff has filed the present suit seeking permanent injunction against the defendant from infringing passing off inter alia the trademarks of the plaintiff and other ancillary reliefs. In the suit it has been pleaded CS(COMM) 18 2022 i) Plaintiff company incorporated in 2012 is in the business of manufacturing marketing and trading all goods relating to personal hygiene including sanitary preparations and allied products. Since January 2020 the plaintiff ventured into the manufacturing and trading of diapers. ii) Plaintiff has obtained trademark registrations in its favour for the marks „SUPER CUTESTERS‟ „SUPER CUTES‟ and „SUPER CUTEZ‟. Details of the trademark device mark word mark of the plaintiff are set out below: S.No. Application Trademark Device Mark SUPER CUTESTERS SUPER CUTES SUPER CUTEZ iii) Trademark application in respect of the trademark device mark „SUPER CUTES‟ is pending registration before the Trademark Registry. iv) The plaintiff has given wide publicity to the said trademarks and the products under the said trademarks are identified and associated by CS(COMM) 18 2022 the public and trade exclusively with the plaintiff. Famous celebrities have served as Brand Ambassadors in respect of the Plaintiff‟s v) The trademarks „SUPER CUTESTERS‟ „SUPER CUTES‟ and „SUPER CUTEZ‟ have gained immense popularity and reputation in relation to the plaintiff‟s products amongst the plaintiff‟s consumers and the general public. In support of this the plaintiff has given the sales figures for the period April 2020 to March 2021 and April 2021 to December 2021 and also the advertisement expenditure in respect of the aforesaid trademarks as per the Books of Accounts maintained by the plaintiff. vii) The plaintiff is the prior adopter and registered proprietor of various trademarks device marks wordmarks as mentioned above and enjoy exclusivity in respect of the said marks. In October 2021 as per the information of the plaintiff the defendant company ventured into the business of „baby diapers‟ adopting a trademark „SUPER PANTS‟ which is deceptively similar to the various trademarks of the plaintiff company in respect of which the plaintiff is a registered proprietor. ix) On 2nd April 2021 and 4th December 2021 cease and desist notices were issued by the plaintiff to the defendant calling upon the defendant not to use the aforesaid trademark. x) On the basis of the aforesaid pleadings the present suit was filed on behalf of the plaintiff alleging infringement as well as passing off on behalf of the defendant of the trademarks of the plaintiff along with CS(COMM) 18 2022 an application under Order XXXIX Rule 1 and 2 of the CPC for interim injunction. The suit along with present application came up for hearing before this Court on 11th January 2022 when summons were issued in the suit and notice was issued in the application. Pursuant to the said notice defendant has filed written statement to the suit. Counsel for the plaintiff has made the following submissions: The trademarks „SUPER CUTESTERS‟ „SUPER CUTES‟ and „SUPER CUTEZ‟ are registered trademarks of the plaintiff and since the defendant is using deceptively similar trademark of “SUPER PANTS” in respect of identical goods i.e. diapers the plaintiff is entitled to grant of injunction in terms of Sections 28 29 read with Section 31 of the Trade Marks Act 1999The plaintiff is a prior user of the aforesaid trademarks in relation to diapers whereas in the trademark application filed on behalf of the defendant for registration of the logo device mark „SUPER PANTS‟ the defendant has stated therein that the aforesaid mark would be on a „proposed to use‟ basis. iii) No justification has been given by the defendant for adopting the deceptively similar trademarks to that of the plaintiff. Therefore the adoption by the defendant is not bona fide. iv) The essential elements of the plaintiff‟s trademarks have been copied v) The registration granted in favour of the plaintiff has not been by the defendant. opposed by the defendant. CS(COMM) 18 2022 vi) Reliance has been placed by the plaintiff on the judgments in Cadila Healthcare Ltd. vs. Dabur India Limited 2008PTC 617Cadila Healthcare Ltd. vs. Gujarat Co operative Milk Marketing Federation Ltd. MANU DE 2282 2099 Moonshine Technology Private Limited vs. Tictok Skill Games Pvt. Ltd. 7 ors. decided on 31st January 2022 in CS(COMM) 331 2021Natures Essence Private Limited vs. Protogreen Retail Solutions Pvt. Ltd. & Ors. decided on 9th March 2021 in CS(COMM) 581 2020The plaintiff itself has been using the word „SUPER‟ in a laudatory manner. In this regard reference has been made to the packaging of the plaintiff‟s product where the word „SUPER‟ has been used in a laudatory manner such as: „Super Soft Feel „Super Thinz‟ „Super Bubble Technology‟ and „Super Absorbent‟. iii) The mark „SUPER‟ is common to the trade and is commonly used by various other manufacturers of diapers. In this regard attention of the Court has been drawn to the packaging of various other manufacturers selling diapers while using the mark „super‟. Defendant has filed a list of registrations granted in respect of the marks that include the word „super‟ and in respect of some of these registrations CS(COMM) 18 2022 trademark registry has imposed a disclaimer on the use of the word „super‟. v) The defendant has not sought registration of the word „SUPER PANTS‟. It has only sought registration in respect of the logo device mark which includes „SUPER PANTS‟ as well as the trademark of the defendant „Dabur‟. vi) The registration has been granted to the plaintiff in respect of the composite mark „SUPER CUTESTERS‟ „SUPER CUTES‟ and „SUPER CUTEZ‟ and not the wordmark „SUPER‟. vii) A comparison of the packaging of the plaintiff and the defendant would demonstrate that there is no similarity between them. Therefore no case for passing off is made out. viii) Rights conferred by registration under Section 28 are not absolute and are subject to other provisions of the Act. In terms of Section 9(1)(a) and 9(1)(c) the mark „super‟ is not entitled for registration. ix) Reliance was placed on Section 30(a) of the Act to contend that since the word „SUPER‟ is being used in a descriptive manner to indicate the quality of the product by the defendant there is no case of In terms of Section 17 of the Act registration of a composite mark will not confer any exclusive right to the plaintiff in respect of a part of the said composite mark i.e. „super‟ in the present case. xi) Reliance is placed on the judgments in Marico Ltd. Vs. Agro Tech Foods Ltd. 2010 SCC OnLine Del 3806 Johnson and Johnson and Ors. Vs. Christine Hoden India Ltd. And Ors. AIR CS(COMM) 18 2022 1988 Delhi 249 and Nestle India Ltd. Vs. Moods Hospitality Ltd. 2010PTC 514(DB). xii) Judgments relied upon by the plaintiff are distinguishable. I have heard the submissions of the parties. At the outset it would be apposite to reproduce a comparative table in respect of the packaging being used by the plaintiff and the defendant: Plaintiff‟s Packaging Defendant‟s Packaging A comparison of the packaging of the defendant and the plaintiff above shows that other than the word “SUPER” occurring in both the aforesaid packaging there is no other similarity. The packaging of the defendant includes the trademark of the defendant „Dabur‟ which is prominently displayed. Merely because the word „Dabur‟ is written in a slightly smaller font as compared to „SUPER PANTS‟ in my opinion would not make any difference. The fact of the matter is that the word CS(COMM) 18 2022 „Dabur‟ is prominently displayed on the packaging along with the word „baby‟. The colour scheme of the packaging is also totally different. The colour scheme of the plaintiff is yellow and orange blue and yellow and the defendant is primarily green. From the description of the packaging of the defendant‟s product it is more than clear that there is enough added material therein to distinguish the defendant‟s product from that of the plaintiff. Therefore it cannot be said that there is a possibility of confusion or deception being caused among the customers of the two products. Hence I am not convinced that the defendant is passing off their goods as those of the plaintiff. The next issue that comes up for consideration is whether word „super‟ is a descriptive or a laudatory word and whether it can attain distinctiveness in respect of the goods of the plaintiff. As per the Oxford‟s Learners Dictionary the word „super‟ means „extremely good‟ and as per the Cambridge Dictionary also the word „super‟ means „excellent or extremely good‟. Clearly as per its dictionary meaning the word „super is a laudatory word of the English Language. 10. There is merit in the submission of the defendant that the word „super‟ has been used by the plaintiff itself in a laudatory descriptive manner. A look at the packaging of the plaintiff clearly demonstrates that the word „super‟ has been used at several places in a laudatory manner. To illustrate the packaging of the plaintiff includes the following phrases: „Super Soft Feel „Super Thinz‟ „Super Bubble Technology‟ and „Super Absorbent‟ which suggest that the products of the plaintiff have an extremely soft feel to the body and are extremely absorbent. By use of the „super‟ the plaintiff is seeking to highlight the positive CS(COMM) 18 2022 quality attributes of its diapers. This leaves no doubt in my mind that the plaintiff is using the word „SUPER‟ in a laudatory descriptive manner. 11. A bare look at the packaging label of the defendant also clearly demonstrates that the defendant has used the word „SUPER‟ in conjunction with the words „PANTS‟ in a descriptive manner along with the trademark of the defendant „Dabur‟. The word „PANTS‟ is used in respect of the diaper and by using the expression „SUPER PANTS‟ the defendant is seeking to convey that its diapers are of extremely good quality. Therefore in my view the expression „SUPER PANTS‟ has been used by the defendant in a laudatory descriptive manner. Furthermore the defendant has not sought registration in the mark „SUPER PANTS‟ but in respect of the composite device mark of the entire packaging which includes the mark „SUPER PANTS‟ as well as the trademark of the defendant „Dabur‟ along with the word „Baby‟. Thus it cannot be said that the use of the mark „SUPER PANTS‟ by the defendant is not bona fide. 12. Counsel for the defendant has taken me through the packaging of various other manufacturers sellers of diapers to show that the use of the word „super‟ is common to the trade. In this regard reference may be made to the packaging of the other parties selling diapers in the market using the word „super‟ along with their brand name such as „TEDDYY‟ using the words „Super Baby‟ „Cuddles‟ using the words „Super Pants‟ „Little Angle‟ using the words „Super Plus Diaper Pants‟ 18 2022 In view of the above I am of the opinion that the mark „super‟ is devoid of any distinctive character and not capable of distinguishing the goods of the plaintiff. Therefore even if the plaintiff has obtained registration in respect of the marks „SUPER CUTESTERS‟ „SUPER CUTES‟ and „SUPER CUTEZ‟ it would not give him exclusive right over the use of the word „SUPER‟. 14. Statutory defenses to an action of an infringement are contained in Section 30 of the Act which provides the various users of a trademark which would not be considered as infringement. The law with regard to descriptive use of a trademark by a party and Section 30(2)(a) has been laid down in the case of Marico Ltd. vs. Agro Tech Foods Ltd. of the Act the plaintiff will not be entitled for injunction. The relevant observations are set out below: “37. Our conclusion is that we have in fact totally failed to appreciate the argument as raised on behalf of the appellant. Surely when rights are claimed over a word mark as a trade mark and which word mark is in fact a mere tweak of a descriptive word indicative of the kind quality intended purpose CS(COMM) 18 2022 or other characteristics of the goods it is not open to urge that although the respondent is using the descriptive word mark in fact only as a part of sentence as a description along with another independent trade mark yet the use of descriptive words are to be injuncted against. How can it at all be argued that though the respondent is in fact shown to be using the disputed word(s) only with a descriptive intendment yet such use should be taken not in a descriptive manner but as a trade mark. If we permit such an argument to prevail then what will happen is that what cannot be directly done will be indirectly done i.e. whereas the appellant is not entitled to succeed in the infringement action because the use by the respondent is in furtherance of its statutory rights of the user of the words which are descriptive of the kind quality intended purpose or characteristic of the goods yet merely because the appellant states that the respondent is using the same as a trade mark the same should be taken as infringement of the trade mark of the appellant. Not only the plaintiff has no exclusive rights whatsoever to the trade marks because they are such which fall respondent defendant is always fully justified and entitled to use the descriptive words in any and every manner that it so chooses and pleases to do. If there are no rights of the plaintiff to exclusive user of the trade mark then where does arise the question of disentitlement of a defendant to use the trade mark of the appellant inasmuch as any person who adopts a descriptive word mark does so at its own peril in that any other person will also be fully entitled to use the same in view of a specific statutory rights thereto and there are various other statutory rights including that under Section 30(2)(a) and which is what is being done by the respondent in the facts of the present case and its rights being further stronger because of the use along with the simultaneous use of its trade mark “Sundrop”. 38. In the facts and circumstances of the present case Section 30(2)(a) clearly applies in entitling the respondent to use the expression “WITH LOW ABSORB TECHNOLOGY” because that is only a descriptive use by normal English words in the the mischief 30(2)(a) CS(COMM) 18 2022 English language indicative of the kind quality intended purpose of characteristic of the goods. There is no use of the expression “bona fide” in Section 30(2)(a) as is found in Section 35 and we do not propose to import in Section 30(2)(a) the expression “bona fide” because the subject matters of the two sections i.e. Section 32 and Section 35 are though common on certain limited aspects however the two Sections do in fact operate in separate fields. Also looking at the issue in another way “bona fide” aspect can in a way be said to be very much included in Section 30(2)(a) because the use of words which indicate their relation to the goods for the kind quality intended purpose or other characteristics etc. of the goods is clearly only a bona fide user of the same and which “bona fideness” does not have to be additionally proved. In fact there is ordinarily not only no lack of bona fides in using the normal descriptive word and on the contrary there is in fact mala fides of a plaintiff in adopting otherwise a descriptive word mark and for which adaption there is ordinarily an absolute ground for refusal of registration of the trade mark. There is no mala fides of the respondent as alleged by the appellant because the respondent is using the expression “LOW ABSORB” as part of a sentence in a descriptive manner and the respondent is also prominently using its own trade mark “Sundrop” an aspect we have repeatedly referred to otherwise in this judgment. Merely because the respondent used “TM” earlier after the expression “LOW ABSORB TECHNOLOGY” is not such as to wipe out statutory rights defences of the respondent.” 15. Similar view was also taken by the Division Benches of this Court in Johnson and Johnson and Ors. Vs. Christine Hoden India Ltd. and Ors.and Nestle India Ltd. vs. Moods Hospitality Ltd.while declining injunctive relief. It is relevant to note here that the registration that has been granted to the plaintiff is in respect of the word marks “SUPER CUTESTERS” “SUPER CUTES” and “SUPER CUTEZ” and not the mark „SUPER‟ per se. CS(COMM) 18 2022 Therefore in view of Section 17(2) of the Act the plaintiff shall not have any exclusive right in respect of the mark „super‟. 17. The intent behind Section 17(2) is to prevent such an abuse by a person who gets a composite mark registered in its favour which includes a non distinctive component. Where there is similarity of non descriptive non essential parts of a mark injunction cannot be granted. The word „super‟ which is being used in a laudatory descriptive manner cannot be said to be an essential distinctive part of the trademark of the plaintiff. Therefore the plaintiff cannot have an exclusive right or monopoly over the right to use the word „super‟. In this regard reference may be made to the judgment of the Bombay High Court in Ultratech Cement Limited Grasim Industries Limited vs. Dalmia Cement Bharat Limited and Ors 2016PTC 314to deny injunctive relief. The relevant observations of the court in paragraph 12 with regard to Section 17 are set out below: CS(COMM) 18 2022 “12. Even as a matter of statutory rights under Section 17 when a trade mark contains any "matter" which is of a non distinctive character forming only a part of the whole the registration of the mark does not confer any exclusive right in the "matter". Dr. Tulzapurkar contended that the Plaintiffs having applied for separate registration of the `part are entitled to claim such exclusive right with respect to it the word `or in the Section being conjunctive. I am afraid that is not a correct reading of the Section. Sub section of Section 17 operates notwithstanding anything contained in Sub section provides that when the trade mark consists of several matters its registration confers on the proprietor exclusive right to the use of the mark `taken as a whole . Sub section is cast in negative terms. It provides that when either of the conditions in clauses (i) or or obtains the registration of the mark shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered." If such matter" forms only a part of the whole of the trade mark the registration of such trade mark does not confer any exclusive right in the "matter" to its proprietor. The word "Ultra" as I have explained above is a part of the whole of the Plaintiffs registered trade marks it is of a non distinctive character and therefore the registration of the mark as a whole does not by reason of Sub section of Section 17 confer any exclusive right on the proprietor to the use of the word `Ultra .” In my view the present case is covered on all fours by the judgments in Marico Ltd. vs. Agro Tech Foods Ltd. and Ultratech Cement Limited Grasim Industries Limited vs. Dalmia Cement Bharat Limited and Ors18 2022 distinctive or the essential part of the composite marks registered by the plaintiff. Therefore in terms of Section 17(2) of the Act the plaintiff is not entitled to grant of injunction in respect of the word „Super‟. 21. Now I proceed to deal with the judgments cited on behalf of the In Cadila Healthcare Ltd. vs. Dabur India Limited the plaintiff was the registered owner of the mark „SUGAR FREE‟ and the defendant was using the word „SUGAR FREE‟ in its packaging. Injunction was sought by the plaintiff against the defendants from using the word „SUGAR FREE‟ on the ground that expression „SUGAR FREE‟ is prominently displayed on the packaging of the defendants which is not a mere description of the characteristics of the product but is being used to create a link between its products with that of the plaintiff‟s. The Single Judge denied injunction holding that there is enough added matter in the packaging of the defendant to distinguish the defendant‟s product from that of the plaintiff. Judgment of the Single Judge was upheld by the Division Bench vide order dated 12th September 2008. In Cadila Healthcare Ltd. vs. Gujarat Co operative Milk Marketing Federation Ltd.the plaintiff was the registered owner of the trademark „SUGAR FREE‟ whereas the defendant was also using the words „SUGAR FREE‟ and the grievance of the plaintiff was with regard to the use of the words „SUGAR FREE‟ by the defendant in their packaging. The Single Judge denied injunction to the plaintiff however directed the defendants to reduce the font size in which the words „SUGAR FREE‟ were written. Both the sides filed appeal CS(COMM) 18 2022 before the Division Bench. The Division Bench did not agree with the contention of the plaintiff that the expression „SUGAR FREE‟ has become distinctive or has acquired secondary meaning to identify the goods of the plaintiff and therefore merely a descriptive use of the words „SUGAR FREE‟ by the plaintiff would not entitle the plaintiff for injunction. In the peculiar facts and circumstances of the case and taking into account the correspondence exchanged between the parties the judgment of the Single Judge requiring the defendant to reduce the font size of the words „SUGAR FREE‟ was not interfered In Moonshine Technology Private Limited vs. Tictok Skill Games Pvt. Ltd. & ors.the plaintiff was the registered owner of the „BAAZI‟ „BAAAZI GAMES‟ „POKER BAAZI‟ „RUMMY BAAZI‟ „BALLE BAZZI‟ „BAAZI MOBILE GAMING‟ etc. Injunction was granted by the court in favour of the plaintiff after coming to finding that the word „BAAZI‟ is not being used in a descriptive manner by the defendant. In Natures Essence Private Limited vs. Protogreen Retail Solutions Pvt. Ltd. & Ors.the plaintiff was the owner of the registered trademarks „NATURE‟S INC.‟ and „NATURE‟S ESSENCE‟ and injunction was sought against the trademark of the defendants “Nature‟s Tattva‟. Injunction was granted in favour of the plaintiff as the mark of the defendant was visually phonetically and deceptively similar to the plaintiff‟s marks and conveyed a deceptively similar idea to that conveyed by the plaintiffs mark “NATURE‟S ESSENCE” and therefore the potential of confusing a customer of average CS(COMM) 18 2022 intelligence and imperfect recollection. The court did not give any finding whether monopoly can be claimed in respect of the word “Nature”. 22. Therefore none of the aforesaid cases cited on behalf of the plaintiff are applicable in the facts and circumstances of the present case. 23. Keeping in view of the aforesaid I am of the opinion that the plaintiff‟s have failed to make a prima facie case for grant of interim 24. Accordingly I.A. 444 2022 filed on behalf of the plaintiff under Order XXXIX Rules 1 and 2 of the CPC is dismissed. 25. Any observation or expression of opinion in this order will have no bearing on the merits of the suit. AMIT BANSAL J. MARCH 03 2022 CS(COMM) 18 2022 |
M/s. Delhi International Airport Pvt. Ltd. V/S Union of India & Others | Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors 136 workers were employed by the contractor M/s. TDI International Pvt. Ltd. to do the work of trolley retrieving at the Domestic and at the International Airport at Delhi in the year 1992. In view of the perennial nature of the work, the workmen approached the Contract Labour Court for abolition of contract labour system and for their absorption as regular employees. AAI came into force merging the International Airport Authority Act, 1971 and the National Airport Authority Act, 1985. 136 workers were employed by the contractor M/s. TDI International Pvt. Ltd. to do the work of trolley retrieving at the Domestic and at the International Airport at Delhi in the year 1992. In view of the perennial nature of the work, the workmen approached the Contract Labour Court for abolition of contract labour system and for their absorption as regular employees. AAI came into force merging the International Airport Authority Act, 1971 and the National Airport Authority Act, 1985. On 26th July, 2004 the Central Government accepted the recommendations of the Contract Labour Court and issued notification dated 26th July, 2004 abolishing the contract labour system. This notification was challenged by AAI before the High Court of Delhi. Taking note of the ONGC judgment reported in Oil and Natural Gas Commission and Another Vs. Collector of Central Excise 1992 Suppl. (2) SCC 432 the High Court vide judgment dated 3rd February, 2005 held that the present proceedings cannot be proceeded with till the matter is resolved by the High Powered Committee (HPC). Accordingly, the matter went to the HPC and the notification was not given effect to. Meanwhile, 136 workers who were engaged as Trolley retrievers by the contractor M/s. TDI International Private Limited working at the airport since 1992 were removed from service on 5th December, 2003 as the contract of M/s. TDI International Private Limited had come to an end and a new contractor Sindhu Holdings came in its place. These 136 members filed Writ Petition No.15156 of 2006 before the learned Single Judge of the High Court of Delhi praying for their absorption in service as regular employees and for implementation of the notification dated 26th July, 2004. PROCEDURAL HISTORYThe learned Single Judge of the High Court after hearing the parties including DIAL vide judgment dated 28th November, 2006 held that the establishment of AAI is no longer in existence and has changed. As such, the notification dated 26th July, 2004 cannot be applied to the new entity DIAL. The appropriate government shall have to issue a fresh notification. Consequently, the Writ Petition filed by the said 136 workers stood dismissed by the learned Single Judge of the High Court. Indira Gandhi International Airport TDI Karamchari Union preferred LPA No.38 of 2007 against the judgment of the learned Single Judge. The Union of India also preferred LPA No.1065 of 2007 against the judgment of the learned Single Judge. During the pendency of these LPAs, an order dated 24th September, 2007 was passed by the Chief Labour Commissioner, Government of India holding that the appropriate government for DIAL is the Central Government. By order dated 22nd November, 2007 the documents and file relating to DIAL were sent to the Central Government. These orders were challenged by DIAL in Writ Petition (C) No.139 of 2008. After getting the permission, AAI filed another Writ Petition (C) No.6763 of 2008 challenging the said notification on merit. The Division Bench of the High Court heard all these matters together and passed the impugned order of 18th December, 2009. The review petition was preferred by the Union of India which was decided on 12th March, 2010 by the High Court modifying para 61 of the impugned judgment. Against the 7impugned judgment of the Division Bench of the High Court, two appeals were preferred by DIAL and three by AAI and one by the Indira Gandhi International Airport TDI Karamchari Union. ISSUE BEFORE THE COURT:Who is the appropriate government for DIAL under the CLRAA and ID Act? This is the subject matter of SLP (C) No.369 of 2010 filed by DIAL? Whether the notification dated 26th July, 2004 is applicable to DIAL as it is issued by the Central Government which is not the appropriate government for DIAL? Whether the notification that applies to the ‘establishment of AAI’ will be applicable to the ‘establishment of DIAL’ which only came into existence on 4th April, 2006? This is the subject matter of SLP (C) No.377 of 2010 filed by DIAL? Whether the Notification dated 26th July, 2004 issued by the Central Government under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970 prohibiting employment of contract labour of trolley retrievals in the establishment of the Airport Authority of India (for short, ‘AAI’) at the Indira Gandhi International Airport and Domestic Airport at Delhi would be applicable to the Delhi International Airport Private Limited or not?Whether DIAL works under the Central Government and whether the Central Government is the ‘appropriate government’ for DIAL? Whether the trolley retrieval services performed by DIAL are done “for the transport by air of persons, mail, or any other thing? RATIO OF THE COURT:A close reading of the objects and reasons indicates that the Central Government under Section 12A of the AAI Act has retained the power to give directions in the public interest or in the interest of better management to lease the premises of the airport to carry out some of its functions under Section 12A, as the authority may deem fit. Some of its (AAI’s) functions have been leased out to DIAL. This has been done under Section 12A(2) with the previous approval of the Central Government. On proper scrutiny of the provisions of the AAI Act, it is abundantly clear that the Central Government has control over AAI and AAI has control over DIAL. DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, there would have been no need for the legislature to separately include AAI as an “enumerated industry”. Such reasoning would be seen on a plain reading of the phrase: “under the authority of the Central Government”, as DIAL itself has admitted that all these industries, on a cursory look, seem to be by or under the control of the Central Government. A close reading of the objects and reasons indicates that the Central Government under Section 12A of the AAI Act has retained the power to give directions in the public interest or in the interest of better management to lease the premises of the airport to carry out some of its functions under Section 12A, as the authority may deem fit. Some of its (AAI’s) functions have been leased out to DIAL. This has been done under Section 12A(2) with the previous approval of the Central Government. On proper scrutiny of the provisions of the AAI Act, it is abundantly clear that the Central Government has control over AAI and AAI has control over DIAL. DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, there would have been no need for the legislature to separately include AAI as an “enumerated industry”. Such reasoning would be seen on a plain reading of the phrase: “under the authority of the Central Government”, as DIAL itself has admitted that all these industries, on a cursory look, seem to be by or under the control of the Central Government. Further, this line of thinking would imply that none of the many industries enumerated in ID Act can be held to act “under the authority of the Central Government”. While this is conceivably the case, it may be more likely that the authors of the ID Act, in listing the enumerated industries, simply wanted to ensure that those industries were covered by the Act, without meaning to affect the separate issue of whether those industries were also acting “under the authority of the Central Government.” Further, while it is fair to assume that the legislature attempts to avoid tautology, such canons are not necessarily dispositive. It is well established canon of statutory construction that the legislature is known to avoid tautology and redundancy. The crucial questions which need our adjudication are: whether DIAL works under the Central Government and whether the Central Government is the ‘appropriate government’ for DIAL? The AAI Act was passed by the Central Government “to provide for the constitution of the Airports Authority of India’ which was in turn charged with the “better administration and cohesive management of airports.” Preamble to Section 12A of the AAI Act allows AAI to contract with third parties to perform some of AAI’s functions (in the public interest or in the interest of better management of airports). It was this proviso which allowed AAI to assign some of its functions to DIAL through OMDA, responsibility for trolley collection services at the Indira Gandhi International Airport and the domestic airport. DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, then there would have been no need for the legislature to separately include AAI as an “enumerated 29industry”. On the one hand, this argument of DIAL is correct. On the other hand, however, such reasoning would seem to contradict a plain reading of the phrase “under the authority of the Central Government” as DIAL itself has admitted, “all these industries, on a cursory look seem to be by or under the control of the Central Government.” Further, this line of thinking would imply that none of the many industries enumerated under Section 2 of the ID Act can be held to act “under the authority of the Central Government”. While this is conceivably the case, it may be more likely that the framers of the ID Act, in listing the enumerated industries simply wanted to ensure that these industries were also acting “under the authority of the Central Government.” In the instant case under Section 12A of the AAI Act all functions have been given to DIAL except watch and ward function, air traffic service and civil enclaves. From the provisions of OMDA, it is clear that all functions of AAI barring reserved activities and all land except certain carved out assets has been given to DIAL. DIAL has admitted that AAI has transferred to it all functions except those related to watch and ward, air traffic service and civil enclaves, none of which can be considered as “air transport service”. That being the case, AAI must have transferred its duty to provide “air transport service” to DIAL and the Central Government must, therefore, be the appropriate government for DIAL under the CLRAA and ID Act. On the one hand, AAI clearly cannot be considered a local authority as it is charged with managing airports throughout India. On the other hand, AAI also cannot be considered an “office or department of the Government”. The AAI Act makes clear that AAI must, in certain circumstances, obtain approval from the Central Government, thereby implying that AAI is not itself the Central Government. Therefore, “establishment” in this case cannot refer to “any office or department of the Government or a local authority”, it must refer to a “place where any industry, trade, business, manufacture or occupation is carried on”. The Division Bench in the impugned judgment held that the establishment for the purposes of the CLRAA is a place where the industrial, trade or business activity is carried on then it necessarily follows in the context of the present case that it is the Delhi Airports which constitute the establishment of AAI and in turn the establishment of DIAL. Admittedly, DIAL has been leased out the portion of AAI’s work, which DIAL only has incomplete control over as well as the fact that DIAL meets the definition of a contractor under the CLRAA, further suggests that DIAL is nothing more than a contractor for AAI establishment. DIAL is not, in other words, a principal employer of an independent establishment. That being the case, the 26th July, 2004 notification, declared at AAI establishment, must also apply to DIAL.For the foregoing reasons, it is clear that the notification dated 26th July, 2004 was equally binding on DIAL under the CLRAA and, therefore, DIAL must abolish all contract labour as per the terms of the notification. The court have no hesitation in coming to the conclusion that the Central Government notification dated 26th July, 2004 is clearly binding and applicable to DIAL. DIAL’s obligation with regard to the contract labour in general is clear from the said notification. They are liable to be regularized as regular employees of DIAL. DIAL has replaced many of the workers with other trolley retrievers and it would be unrealistic to expect DIAL to regularize the employment of their current trolley retrievers and member of the workers’ union alike and inequitable to leave the current workers jobless so as to make room for erstwhile workers of DIAL. DECISION HELD BY COURT:In this case the judgment was given by JUSTICE DALVEER BHANDARI that the peculiar facts and circumstances of these cases directing DIAL to regularize services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic and not a pragmatic approach.The court deem it proper to direct DIAL to pay Rupees five lakhs to each of the erstwhile 136 workers of DIAL who were working for them as trolley retrievers till 2003 and in case any worker has expired, then his or her legal heirs would be entitled to the said amount. This compensation is paid to the workers in lieu of their permanent absorption/reinstatement with DIAL and their claim of back wages. In this case the judgment was given by JUSTICE DALVEER BHANDARI that the peculiar facts and circumstances of these cases directing DIAL to regularize services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic and not a pragmatic approach. The court deem it proper to direct DIAL to pay Rupees five lakhs to each of the erstwhile 136 workers of DIAL who were working for them as trolley retrievers till 2003 and in case any worker has expired, then his or her legal heirs would be entitled to the said amount. This compensation is paid to the workers in lieu of their permanent absorption/reinstatement with DIAL and their claim of back wages. This is in full and final settlement of entire claims of erstwhile 136 workers of DIAL. The court direct DIAL to pay the amount to these 136 erstwhile workers of DIAL within three months after proper verification. In case the amount, as directed, is not paid within the prescribed period, then it would carry interest at the rate of 12% per month from that point till the amount is paid. These appeals are accordingly disposed of in the aforementioned terms. In the facts and circumstances of these cases, The court direct the parties to bear their own costs. | Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed |
Grant of Electricity connection does not recognize the title to the said property: Delhi High Court | Grant of electricity connection would not confer any special equities in favour of the petitioner and would not be construed as conferring or recognizing the title of the petitioner to the said property or with regard to the identity of the said property. This was held by Hon’ble Justice Sanjeev Sachdeva in the case of Sanjana vs. BSES Yamuna Power Ltd. [W.P.(C) 7846/2021] on the 25th of August 2021, before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, the Petitioner seeks a direction to the respondent to grant an electricity connection to the property of the petitioner being House No. 545, Baba Farid Puri, Patel Nagar, New Delhi. The petitioner has been residing in the subject property since her marriage in 2014. The counsel for the petitioner submitted that connection has not been provided on the ground that petitioner has applied for a connection for house No. 545, however, house of the petitioner is not 545. The counsel for the respondent however submits that, the house of the petitioner is right next to a Shiv Mandir which bears a number 515. He, however, concedes that the numbering in the area is not systematic. A rough site plan has been filed which has been prepared after an inspection which states that there is a property by the number 140/545 which is at a distance of about 60 meters from the site for which connection has been applied for. It was also submitted that, the exact number of the property of the petitioner could not be identified as there was no other indication except for the contention of the petitioner. The learned judges heard the submissions of both the parties and observed that, complaint has been received on 28.07.2014 from the Shiv Mandir Charitable Trust contending that one Smt. Kaushalaya used to reside in the Mandir for cleaning the temple premises and her son along with his wife and children had started residing in the Mandir illegally and they are seeking to have an electricity meter installed. It was further observed that the petitioner has placed on record a ration card which has been approved by the Food Supply Officer on 15.10.2014 which also mentions the address as 545, Baba Farid Puri, West Patel Nagar. Voter ID Card of the petitioner has also been placed on record of the same address. Observing the documents placed on record, the judges concluded that There is no material placed on record by the respondent to counter this or to show that the property she is occupying bears some number other than house no. 545. | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 25th August 2021 W.P.(C) 7846 2021 SANJANA Petitioner BSES YAMUNA POWER LTD Respondent Advocates who appeared in this case: For the Petitioner : Mr. Harbeer S. Chadha Advocate For the Respondents : Mr. Rishabh Raj Jain Advocate 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 grant an electricity connection to the property of the petitioner being House No. 545 Baba Farid Puri Patel Nagar New Delhi. It is contended that petitioner has been residing in the subject property since her marriage in 2014. Learned counsel for the petitioner submits that connection has not been provided on the W.P. (C)7846 2021 ground that petitioner has applied for a connection for house No. 545 however house of the petitioner is not 545. Learned counsel for the respondent under instructions submits that the house of the petitioner is right next to a Shiv Mandir which bears a number 515. He however concedes that the numbering in the area is not systematic. A rough site plan has been filed which has been prepared after an inspection which states that there is a property by the number 140 545 which is at a distance of about 60 meter from the site for which connection has been applied for. Learned counsel for the respondent submits that the exact number of the property of the petitioner could not be identified as there was no other indication except for the contention of the petitioner. It is further submitted that complaint has been received on 28.07.2014 from the Shiv Mandir Charitable Trust contending that one Smt. Kaushalaya used to reside in the Mandir for cleaning the temple premises and her son along with his wife and children had started residing in the Mandir illegally and they are seeking to have an electricity meter installed. Learned counsel for the respondent submits that the complaint alleges that the portion of the petitioner is property no. 515 which he W.P. (C)7846 2021 is claiming to be property no. 545 and that is the reason why the electricity connection could not be granted. Perusal of the documents filed along with the petition show that petitioner her husband and children all have Aadhar Cards issued by the Government of India at the address House No 545 Baba Farid Puri West Patel Nagar Central Delhi. Further petitioner has placed on record a ration card which has been approved by the Food Supply Officer on 15.10.2014 which also mentions the address as 545 Baba Farid Puri West Patel Nagar. Voter ID Card of the petitioner has also been placed on record of the same address. It is clear that petitioner has several documents which have been issued by the Government authorities showing that she is a resident of house no. 545 Baba Farid Puri West Patel Nagar New Delhi. There is no material placed on record by the respondent to counter this or to show that the property she is occupying bears some number other than house no. 545. In view of the above Respondents are directed to grant an electricity connection to the petitioner subject to petitioner complying with the commercial and other formalities as per the rules. W.P. (C)7846 2021 It is clarified that the grant of electricity connection or this order would not confer any special equities in favour of the petitioner and would not be construed as conferring or recognising the title of the petitioner to the said property or with regard to the identity of the said property. 13. Petition is allowed in the above terms. 14. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court AUGUST 25 2021 SANJEEV SACHDEVA J W.P. (C)7846 2021 |
It is better that ten guilty persons escape, than that one innocent suffers: The Supreme Court of India | It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are often reluctant to speak truth due to fear or other extraneous reasons. The burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely depend upon oral testimonies. The aforesaid has been established by the Supreme Court of India while adjudicating the case of Bijender v. State of Haryana [CRIMINAL APPEAL NO. 2438 OF 2010] which was decided upon by a single judge bench comprising Justice Surya Kant on 8th November 2021. The facts of the case are as follows. on 14th April 1999, at around 11:00 AM, Bal Kishan (Complainant) was on his way to Delhi on his motorcycle along with his nephew, Sanjay, to purchase a plot of land and was carrying a sum of Rs. 46,000/ for the said purpose. When the Complainant reached near the farmhouse of one Virender Bansal, on Jatheri Road, he was intercepted by a vehicle. The Appellant and one Manjeet (coaccused) stepped out of the said vehicle, armed with country-made pistols, and asked the Complainant to hand over the amount. The Complainant then handed over the key of the bike. The Accused took out the bag containing the money from the boot of the motorcycle and fled from the spot. Whereafter, the Complainant rushed towards the nearest Police Station on foot, leaving his nephew and the motorcycle behind, at the place of the incident. The Trial Court convicted the Appellant and Manjeet under Sections 392 & 397 IPC. Manjeet was further convicted under Section 25 of the Indian Arms Act, 1959. Accused Mukesh and Subhash were also convicted under Section 120B IPC. All the Accused were sentenced with a maximum sentence of rigorous imprisonment of 10 years each under Section 397 IPC and/or Section 120B IPC. However, the High Court reduced the sentence under Section 397 IPC to rigorous imprisonment of 7 years so as to meet the ends of justice. The court perused the facts and arguments presented. It was of the opinion that “ Unmindful of these ageold parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. In light of the aforestated discussion, we are of the considered opinion that the evidence on record does not establish the guilt of the appellant beyond reasonable doubt and the Courts below have arrived at recording the guilt of the Appellant in absence of any cogent rationale, justifying his conviction.” | The instant Criminal Appeal emanates from the judgment and order dated 7th September 2009 of the High Court of Punjab and Haryana at Chandigarh whereby the order dated 20th March 2002 passed by the Additional Sessions Judge Sonipat convicting the AppellantBijender @ Mandar under Sections 392 and 397 IPC was imprisonment with a fine of Rs.10 000 for the offence punishable under Section 397 IPC. Both the sentences were directed to run Briefly put the Prosecution version is that on 14th April 1999 at on his motorcycle along with his nephew Sanjay to purchase a plot of Bansal on Jatheri Road he was intercepted by a vehicle. The Appellant and one Manjeet stepped out of the said the boot of the motorcycle and fled from the spot. Whereafter the Complainant rushed towards the nearest Police Station on foot leaving his nephew and the motorcycle behind at the place of the the occurrence to him. Consequently an FIR was lodged and the was declared a proclaimed offender under Section 82 Cr.P.C. the Prosecution. No evidence was led by the Defence. The Prosecution presented its narrative before the Trial Court that the Accused persons along with Vinod conspired together to loot the Complainant Delhi. Whereas coaccused Mukesh and Subhash had provided the information the Appellant Manjeet and Vinod actually carried out the The case of the Prosecution banked heavily on the disclosure made pursuant thereto. The Appellant in his revelation in his deposition acknowledged Appellant in his presence. He further denied that the Accused including the Appellant matched the identity of the persons who committed the felony. He also denied that the recovery memo bore his signature. The Complainant’s nephew Sanjaywho was an eyewitness also debunked the very occurrence of the incident in its entirety and testified that no amount was snatched from his uncle the Complainant. In a similar vein PW5 and PW8 police and to the alleged conspiracy respectively also resiled and were and stood their ground qua the guilt of the Accused. In this regard including the Appellant and stated that the Complainant in his supplementary statement before the police had contended that Rs Manjeet had sought for Test Identification Paradewould be killed. H.C. Karmbir Singhwho was present with were the statements made by other coaccused under Section 313 The Trial Court found strength in the contention of the of the articles especially the ‘red cloth’ and the passbook which were guilt of the Accused. Consequently the Trial Court convicted the further convicted under Section 25 of the Indian Arms Act 1959 Accused Mukesh and Subhash were also convicted under Section of rigorous imprisonment of 10 years each under Section 397 IPC basis of disclosure statements. Upon reappraisal of evidence the High Court was unimpressed by the plea raised on behalf of the Accused and concurred with the findings of the Trial Court and commission of the crime. The High Court vide a common judgment maintained the conviction of the Accused persons. Nonetheless the 11. We have heard learned counsel(s) for the Appellant and the depth. The principal contention raised on behalf of the Appellant is that his conviction is based solely on the basis of the ‘disclosure that during the pendency of the present appeal this Court in 2013 had already acquitted coaccused Mukesh and Suresh with a 12. Learned State Counsel on the other hand reminded us of the limited scope of interference by this Court in a case of concurrent the basis of his disclosure statement which led to the recovery of Rs 5 000 along with the ‘red cloth’ and the Indian Bank passbook was sufficient to foster the conviction of the Appellant. Regarding the acquittal of the coaccused it was rebutted that the allegations qua them pertained only to the extent of conspiracy and hence their Appellant herein who is alleged to have actually carried out the yet while beseeching such powers in a criminal appeal by special reappraisement of evidence and doubt the credibility of witnesses circumstances where the decision(s) under challenge are shown to 14. Adverting to the case at hand indubitably the only eye witnesses to the alleged crime i.e. the Complainantand his denied that the Appellant or his coaccused were involved in the execution of the offence. Further in the deposition of ASI Rajinder Kumarwho was the investigating officer of the case there is no mention of T.I.P. even attempted to be led in so far as the of the perpetrators stands obscured particularly considering that all the accused in the case were arrested on the basis of a secret 15. The short question that falls for our consideration thus is whether the conviction of the Appellant on the strength of the PD 2) in the absence of any corroborative evidence can sustain to sustain the guilt of such accused the recovery should be hasten to add that circumstances such as the period of interval between the malfeasance and the disclosure commonality of the recovered object and its availability in the market nature of the object and its relevance to the crime ease of transferability of the object the testimony and trustworthiness of the attesting witness Haryana3 State of Rajasthan vs. Talevar & Anr4 and Bharama Incontrovertibly where the prosecution fails to inspire to its nexus to the alleged offence the Court ought to stretch the persons escape than that one innocent suffer”. The doctrine of of a guilty person constitutes a miscarriage of justice just as save where the law casts duty on the accused to prove his her material witnesses are likely to be slippery either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely 19. Unmindful of these ageold parameters we find that the by irrelevant considerations such as the rise in the incidents of incriminating articles without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the Firstly the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar as well as Raldu have recovery memo on the other hand Raldu also exhibited documents nor did that he affirm to having his Fourthly the recovered articles are common place objects such as Investigating Officer Rajinder Kumar can also be easily of the alleged offence. We find it incredulous that the Appellant in his custody along with the money he allegedly robbed off the Sixthly and finally there is no other evidence on record which even view of the Trial Court and the High Court qua the alleged threat is Although the Prosecution has attempted to place reliance on the at recording the guilt of the Appellant in absence of any cogent 22. Consequently and as a sequel thereto the criminal appeal is allowed. The judgments and orders passed by the Trial Court and Bail bond if any stands discharged. |
There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the offender: Orissa High Court | The fact that the witnesses are related to each other is no criterion for disregarding their evidence. Relative should have no interest to falsely implicate the accused or protect the real culprit. There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. The judgement was passed by the High Court of Orissa in the case of Benga @ Imam Mahammad v. State of Orissa [CRLA No.19 of 2003] by Division Bench consisting of Hon’ble Justice S. Panda & S. K. Panigrahi. The present appeal has been filed against the judgment of conviction and order of sentence passed by the learned Sessions court, whereby the appellant has been convicted for commission of an offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life. Learned Counsel for the appellant submits that out of the two eye-witnesses, the brother of the deceased has turned hostile. He even denied having lodged the F.I.R. and given any statement to the Investigating Officer. On the other hand, a conviction cannot be established only on the basis of the sole testimony of P.W.6 without any proper corroboration from any other independent witness. Additionally, the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further, on his deposition before the Court stated that the police took his signature on some written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Learned Counsel for the respondent has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon. Further, he relied upon the evidence of P.W.6 who is one of the eye-witnesses and also sustained injuries while trying to save the deceased from the onslaught. Hence, he submits that the prosecution has sufficiently proved the motive of the accused in committing such a heinous crime. Having made the aforesaid submissions, learned Counsel for the State submits that the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. While relying on the case of Gangadhar Raju alias Balachandran vs. State of Tamil Nadu, the court noticed that “It is well settled that the testimony of a related witness cannot be discredited mechanically because relationship of the witness cannot be a ground to determine the credibility of the testimony.” | HIGH COURT OF ORISSA: CUTTACK CRLA No.103 From the judgment dated 20.12.2002 passed by learned Sessions Judge Khurda at Bhubaneswar in S.T. Case No.802.) Benga @ Imam Mahammad State of Orissa Respondent Mr. Dharanidhar Nayak Senior Advocate M s. Akash Bhuyan R.K. Pradhan M. Mohanty P.K. Mohanty N.K. Mohanty B. Rout and P.K. Deo Advocates For Respondent: Mr. Sk. Zafarulla Additional Standing Counsel THE HONOURABLE KUMARI JUSTICE S. PANDA HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 19.03.2021Date of judgment 19.03.2021 S. K. Panigrahi J. 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurdaat Bhubaneswar in S.T. Case No.802 whereby the appellant has been convicted for commission of offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life. 2. Shorn of unnecessary details the substratum of the matter presented before us remain that the deceased was a fish vendor at Unit IV Fish Market Bhubaneswar and used to reside nearby. The appellant used to sell mutton in the said market. The appellant was married to the sisterof the deceased and they had one son and two daughters. Ranju allegedly deserted the appellant and left with another man whereafter the appellant refused to take care of the children. The mother of the deceased who also used to reside in the same colony brought the children to her house and started looking after them. Thereafter there was regular quarrel between the appellant and the deceased over the maintenance of the children. On 31.07.2001 at 8:15 P.M. there was a heightened quarrel between the appellant and the deceased in course of which the appellant attempted to strike at the abdomen of the deceased with a knife but the blow struck his thigh just below the abdomen as the latter tried to ward it off. The appellant charged again and this time struck the deceased on his forehead. Thereafter the wife of the deceasedcame to the rescue of her husband and wrenched away the knife M.O.I) from the appellant and threw it on the ground and in the process she sustained injuries on her right palm. 3. The I.I.C. Kharavelanagar Police Stationafter receiving an anonymous phone call about the occurrence alerted the police patrol team over V.H.F. and proceeded to the scene of occurrence. When they reached at the spot they found the deceased lying on the ground in pool of blood. The deceased was immediately shifted to Capital Hospital Bhubaneswar in a police Jeep by the S.I. B.K. Aich. The doctor on casualty duty declared the deceased as ‘brought dead’. Charan Biswal P.W.2) the brother of the deceased who was present at the spot lodged the F.I.R. with the I.I.C.(P.W.7) Kharavelanagar P.S. Bhubaneswarwhereupon Kharavelanagar P.S. Case No.189 dated 31.07.2001 was registered. 4. During the course of investigation the I.O. proceeded to the village and took the appellantinto his custody. The body of the deceasedwas sent for post mortem examination. The appellant was then arrested and forwarded to the court. The I.O.also effected seizure of knife a pair of blood stained chappal belonging to the deceasedanother pair blood stained chappal belonging to the accused blood stained earthand sample earthproduced the wearing apparels of the deceased a lungiand a napkin M.O.III) before a police constable P.W.3) who thereby produced it before the I.O. After completion of investigation charge sheet was submitted against the accused. 5. To bring home the charges the prosecution examined as many as 8 witnesses. P.W.1 is the Medical Officer who conducted autopsy over the deadbody of the deceased.P.W.2 is the brother of the deceased and the informant in the present case. P.W.3 is the police constable who carried the dead body to the hospital and the seizure witness of M.O.II and M.O.III. P.W.4 is an independent witness who has a vegetable shop in Unit IV market and also a seizure witness. P.W.5 is the Medical Officer who has treated P.W.6 who is the wife of the deceased. P.W.7 is the I.I.C. of Kharavelanagar P.S. and P.W.8 is the Investigating Officer. P.W.2 and P.W.6 are the only eye witnesses.On the other hand defence has examined two witnesses. 6. Mr.Dharanidhar Nayak learnedSenior Counsel appellant submits that out of the two eye witnesses P.W.2 informant) the brother of the deceased has turned hostile. He even denied to have lodged the F.I.R. and given any statement to the Investigating Officer. On the other hand conviction cannot be established only on the basis of the sole testimony of P.W.6 without any proper corroboration from any other independent witness. Additionally the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further P.W.4 on his deposition before the Court stated that the police took his signature on some written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Therefore without any seizure the prosecution case cannot be established. Further P.W.5 in her evidence opined that she tried to rescue her husband from the appellant and thereby sustained injuries. However in the cross examination she has admitted that both the injuries could not have been inflicted by the same weapon. P.W.6 in her 161 CrPC statement has not mentioned at which part of the body the appellant made an assault. This casts aspersions on her role as an eye witness. Therefore the prosecution should not rely on her deposition. The Investigating Officerhas admitted in his cross examination that he has not reflected in the C.D. or in the seizure list that he has sealed the M.O.I and M.O.VI and neither has he produced the seal before the court. Therefore after seizure without any seal on the material casts doubt on the prosecution case. Moreover the depositions and evidences of the prosecution witnesses are contradictory to each other. In view of the above he urged that the accused be entitled to the benefit of doubt as the prosecution has failed to prove the case against him beyond reasonable doubt. 7. The plea of the appellant is that on the night of occurrence he and the deceased had a liquor bout during which the deceased had quarrel with some people and those people came to the Unit IV market and attacked both of them. 8. Per contra learned Counsel for the State has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon who is one of the eye witnesses and also sustained injuries while trying to save the deceased from the onslaught.Hence he submits the prosecution hassufficiently proved the motive of the accused in committing such a heinous crime. Having made the aforesaid submissions learned Counsel for the State submits that the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. 9. Heard learned Counsel for the parties.It can be summarised that the learned Court below in order to bring home the culpability of the appellant has relied upon the following circumstances namely I) Statement of eye witnesses Corroboration of witnesses’ depositions. While doing so the Trial Court has proceeded to hold that these circumstances establish a complete chain which prove beyond reasonable doubt that the appellant has committed the murder of the deceased. 10. Upon perusal of the evidence produced before the Trial Court with regard to the first circumstance i.e. statement of the eye witness stated hereinabove the evidence of P.W.6 has been relied upon.The evidence of an eyewitness if credible constitutes needless to say the best possible evidence. There is wealth of judicial authority for the proposition that conviction may rest on the sole testimony of an eyewitness sans any other evidence provided always the evidence of the eyewitness is absolutely credible. In a recent case of Dalip Kumar v State of Delhi1 Delhi High Court iterated that: “14. As the value of evidence increases however so does the rigour and strictness of the scrutiny to which the evidence is required to be subjected. While therefore upholding the principle that conviction can rest on the sole testimony of an eye witness without any supportive evidence whatsoever the Supreme Court has been at pains to also hold that in all such cases the credibility of the evidence of the eye witness is required to be conclusively established. For this the court is required to assess among other things the evidence of the eye witness as tendered during investigation when compared with his evidence during trial and to examine whether the evidence tendered 1CRL.A.45 2002 &Crl. M.A.10587 2019 Further the Supreme Court in the case of Amar Singh vs The State4 SCC 343 10 12. In the instant case with a view to base a conviction on the evidence of an ocular witness and circumstantial evidence the prosecution has rightly established all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances also leads to a perfect flow of the chain of events which would permit no other conclusion than the guilt of the accused. The circumstances present in the cases are not dependent upon any hypothesis. The present case is not based on suspicion and it cannot falsify the statement of an ocular eye witness even if she is related or interested witness. Further if it is found that the appreciation of evidence in a case which is entirely based on circumstantial evidence is on a different footing than a case like the present one wherein an ocular witness is present and stated what she has been at the time of occurrence. Had it been a case of only on circumstantial evidence this would have vitiated by serious errors and the Court would have certainly interfered. 13. The Hon’ble Apex Court in the case of C.Chenga Reddy and Ors. v. State of A.P.4 has dealt with a case where suspicion has been allowed to take the place of reason and has held in no uncertain terms that 4(1996) 10 SCC 193 “21. In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.” But in the instant case the circumstantial evidence is intercepted by the testimony of one ocular witness which itself is sufficient to complete the chain without any ‘ifs’ and ‘buts’ or any kind of hypothetical premise. 14. Thegeneral presumption that governs the criminal prosecution is that related witness would not falsely testify against an innocent person as they would prefer to see the real culprits getting punished as held in Jarnail Singh vs. State of Punjab5. However testimony of such witnesses should be analysed with caution for its credibility as held in Gangadhar Behera & Others vs. State of Odisha6. It is well settled that the testimony of a related witness cannot be discredited mechanically because relationship of the witness cannot be a ground to determine the credibility of the testimony as held in 5(2009) 9 SCC 719 6 2003 SCC32 12 Raju alias Balachandran vs. State of Tamil Nadu7 and reiterated in A. Alagupandian vs. State of Tamil Nadu.8 In Balraje vs. State of Maharashtra9 the apex Court has succinctly held that : “If after careful analysis and scrutiny of their evidence the version given by the witnesses appears to be clear cogent and credible there is no reason to discard the same”. Hence it is the truthfulness of the statement that the law takes into account and the credibility of a related witness is not dependent upon its relationship with either party and the court should exercise care and caution to determine the admissibility of its testimonial by relying only on the truth. A mere relationship of the witness would be no ground to reject it. A close relative who is a natural witness to the circumstances of the case cannot be regarded as an interested 15. Similarly in Bhagwan Swarup V.State of U.P.10 State of U.P. V. Paras Nath Singh11and Swarn Singh V.State of Punjab12 the Apex Court held that: “The fact that the witnesses are related to each evidence. Relative should have no interest to for disregarding is no criterion 7. AIR 2013 SC 983 8 Criminal Appeal No.1315 OF 200996 SCC 673 10AIR 1971 SC 429 11AIR1973 SC 1073 12 1976 Cri. L.J. 1757 the relations of falsely implicate the accused or protect the real culprit. There is no general rule that the evidence the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances..” 16. The Investigating Officer has been successful in corroborating the prosecution story. The seized weapon used in the crime and other articles at the instance of the accused the testimony of P.W.6 does form a formidable chain establishing that the accused is the real brain behind the crime. The entire circumstantial evidence and the testimony of P.W.6 show beyond reasonable doubt regarding the involvement of the accused without any iota of doubt. 17. For evidence introduced and to be made admissible in courts requires a degree which should exclude falsity and help expose the correct facts in a trial. Witnesses disputably stand at the pinnacle of the justice delivery sequence. The testimony should be such it clarifies the situation while maintaining a favourable attitude towards the side for whom the statement is being given. When the witnesses are not able to depose correctly or turn ‘hostile’ in the court of law it shakes public confidence in the criminal justice delivery system. Accentuating this view Bentham said: “witnesses are the eyes and ears of justice”. However it seems the ‘eyes and 14 ears’ have defied the prosecution in so far as prosecution witnesses Nos.2and 5 have turned hostile. Their alleged statements made to the police Under Section 161 of Code of Criminal Procedure were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged statements of the above hostile witnesses recorded Under Section 161 of Cr.P.C. as held by the Apex Court in three Judges Bench in the case of V.K. Mishra v. State of Uttarakhand13: “16. Section 162 Cr.PC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police Under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: of contradicting such witness by an accused under Section 145 of the Evidence Act the contradiction of such witness also by the prosecution but with the leave of the Court and iii) the re examination of the witness if necessary. 17.The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross examination and also during the cross examination of the investigating officer. The statement before the 13(2015) 9 SCC 588 investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.” 18. Nonetheless even at the advent of hostility the court expects the prosecution to endeavour in corroborating the ‘hostile’ testimonies as a last ditch effort into buttressing its side of the story and has rightly done so. However the prosecution has taken the aid of the solitary ocular witness along with the circumstantial evidence and avoided the onset ‘defeatism’. Consequentially the testimonies of the witnesses in this case are not inadmissible in its entirety. The seizure witness P.W.5 turned hostile during cross examination and clearly denied the seizure of articles but the use of the M.O.I in the crime is certain and not otherwise 19. With the above backdrop and discussion this Court comes to an irresistible conclusion that the prosecution has been successful in bringing home the charges against the appellant beyond reasonable doubt and that the Court below has appropriately dealt with the evidence and the attuning circumstances in proper perspective. Mere fact that the solitary witness is related to the deceased or did not state the incident in the same language or in a manner which is 16 natural in the opinion of the court does not affect in any way the credibility of the witness. In view of the discussion made hereinabove the court below has maintained a positive judicial attitude towards victim justice and while considering the credibility of evidence or testimonial the court has also exercised due care and caution to arrive at the truth. There seems to be absence of any bias or presumptions while connecting the chain and have perfectly corroborated with the circumstantial evidence. 21. Accordingly the Criminal Appeal filed by the appellant is dismissed. The judgment of conviction and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurda atBhubaneswar in S.T. Case No.802 is hereby It is brought to the notice that the appellant is on bail by order of this Court dated 02.07.2008. In such view of the matter the bail bonds stand cancelled and the trial court is directed to issue warrant of arrest against the appellant to suffer remaining part of the sentence. The LCR be returned forthwith to the court from which it was received. S.K. Panigrahi J.) Orissa High Court Cuttack The 19th day of March 2021 AKK LNB AKP |
To make the Constitutional and Statutory Right available, it is necessary that Detenu be informed: High Court of Jammu & Kashmir and Ladakh at Jammu | Provision of relevant material to the detenu, is necessary to prevent the detenu from making an effective representation against his detention, as observed by the High Court of Jammu & Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. TASHI RABSTAN, in the matter of Ali Hayder & Anr. vs. Union Territory of Jammu and Kashmir & Ors. [WP(Crl) No.32/2021], on 09.12.21. The petitioner, Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas, District Rajouri had filed the present habeas corpus petition through his copusin, questioning the detention order dated 20.05.2021 enforced against him by respondent, the District Magistrate, Rajouri, under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. The Learned Counsels for the appellant, Mr. Sheikh Altaf Hussain, contended that the detenu has never committed any criminal or anti-national offence however he along with three other persons, has been implicated in a false and frivolous case registered with Police Station Budhal, Rajouri. It was argued that there was no danger to public order especially when the petitioner was already in custody for the alleged commission of offence punishable under Sections 295-A and 429 of the Indian Penal Code, 1860, wherein no bail had been granted by the competent court of law and as such, no situation arose for slapping the detention order on the detenu. was is further submitted that the material relied upon by the detaining authority, the grounds of detention and the confidential reports submitted by District Special Branch, Rajouri, were never supplied to the detenu; and that the petitioner made a representation on 31.05.2021 in absence of supply of above material, but the same had not been decided by the respondents. As the material relied upon by the detaining authority on the basis of which the detention order was passed, had not been supplied to the detenu, it was contended that the order of detention is liable to be quashed as the detenu could not make an effective representation to the respondents against his detention. The Learned Counsel for the respondent, Mr. Bhanu Jasrotia, argued that the detenu had been detained as per the provisions under Section 8 of Jammu and Kashmir Public Safety Act, 1978 on the ground to maintain proper order, harmony and to prevent violence of any kind in the district and also to prevent the detenu from acting in any manner which is highly prejudicial to the maintenance of public order. Thus, it was contended that the petition was not maintainable. The Honourable High Court of Jammu & Kashmir and Ladakh at Jammu, held that the failure on part of detaining authority to supply material relied at the time of making detention order against the detenu, renders detention order illegal and unsustainable. It observed that Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law, to make a representation against the detention. The detenu was held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), of the Constitution of India and Section 13 of the Jammu & Kashmir Public Safety Act, 1978, thus makes it obligatory for a Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what are the apprehended activities that persuaded the Detaining Authority to make the detention order. Relying on precedents, the Court held that it is well settled law that even where one of grounds, relied upon by the Detaining Authority to order detention, is vague and ambiguous, the constitutional and statutory right of the detenu to make an effective representation against his detention are taken to have been violated. Thus, the petition was allowed and the impugned order was quashed. | HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(Crl) No.32 2021 CrlM Nos.2141 2021 & 965 2021 Ali Hayder Reserved on 06.12.2021 Pronounced on 09.12.2021 …Petitioner(s) Through: Mr. Sheikh Altaf Hussain Advocate. Union Territory of Jammu and Kashmir and others …Respondent(s) Through: Mr. Bhanu Jasrotia GA. Coram : HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE JUDGMENT The petitioner namely Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas District Rajouri has filed this habeas corpus petition through his copusin questioning the detention order bearing No.DMR INDEX 02 of 2021 dated 20.05.2021 slapped on him by respondent No.2 i.e. the District Magistrate Rajouri under Section 8 of the J&K Public Safety Act 1978. It is contended in the petition that the detenue has never committed any criminal anti national offence however he along with three other persons has been implicated in a false and frivolous case registered with Police Station Budhal Rajouri. It is submitted by learned counsel for the petitioner detenue that there was no danger to public order especially when the petitioner was already 2 WP(Crl) No.32 2021 in custody in FIR No.44 2021 registered with Police Station Budhal for the commission of offence punishable under Sections 295 A 429 IPC wherein no bail has been granted by the competent court of law till date and as such no situation arise for slapping the detention order on the detenue. It is further submitted that the material relied upon by the detaining authority i.e. the dossier the copy of FIR No.44 2021 the grounds of detention and the confidential reports submitted by District Special Branch Rajouri has never been supplied to the detenue or his brother. It is submitted that the detenue has made a representation on 31.05.2021 in absence of supply of above material but the same has not been decided by the respondents till date. Reply affidavit has been filed by respondents objecting the Heard learned counsel for parties considered their submissions and perused the record produced by learned counsel for the respondents. A bare perusal of the detention order reveals that the detenue has been placed under detention vide detention order No. No.DMR INDEX 02 of 2021 dated 20.05.2021 passed by District Magistrate Rajouri under Section 8 of Jammu and Kashmir Public Safety Act 1978 on the ground to maintain proper order harmony and to prevent violence of any kind in the district and also to prevent the detenue from acting in any manner which is highly prejudicial to the maintenance of public order. A bare perusal of record reveals that one Javed Manhas Sub Inspector No.876430 EXJ Police Station Rajouri has taken the custody of deteune on 22.05.2021 and as such executed the execution report to the detenue and handed over his custody to the Deputy Superintendent Central Jail Kotbhalwal Jammu on the same date. The execution report further reveals that the contents of detention warrant along with ground of detention was read over 3 WP(Crl) No.32 2021 to the detenue in English language and thereafter explained him in Pahari Language. It is contended that total eight number of leaves were handed over to detenue which include copy of detention warrant grounds of detentionand notice of detentionagainst proper receipt. On going through the record so produced it comes to the fore that the copy of dossier copy of FIR No.44 2021 and the confidential reports submitted by District Special Branch Rajouri bearing DD Report No.20 dated 14.05.2021 DD Report No.19 dated 17.05.2021 and DD Report No.10 dated 18.05.2021 of Police Post Khawas have not been supplied to the detenue. The failure on part of detaining authority to supply material relied at the time of making detention order against the detenue renders detention order illegal and unsustainable. While holding so support is drawn from law laid down in ThahiraHaris Etc. Etc.v. Government of KarnatakaUnion of v. Ranu Bhandari 2008 Cr. L. J. 4567) DhannajoyDass v. District Magistrate Sofia Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR 1999 SC 3051) and Syed AasiyaIndrabi v. State of J&K &ors(2009 S.L.J 219) and Union of India v. Ranu Bhandariof the Constitution provides a precious and valuable right to a person detained under preventive detention law J&K Public Safety Act 1978 to make a representation against the detention. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial 4 WP(Crl) No.32 2021 to the maintenance of public order or security of the State. Article 22(5) Constitution of India and Section 13 of the Act thus makes it obligatory for Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government as the case may be that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenu meaningful it is necessary that detenu be informed with all possible clarity what is are apprehended activity ies that persuaded Detaining Authority to make detention order. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenu has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenu. It is well settled law that even where one of grounds relied upon by Detaining Authority to order detention is vague and ambiguous Constitutional and Statutory right of detenu to make an effective representation against his detention are taken to have been violated. Reference in this regard may be made to law laid down in State of Maharashtra &ors v. Santosh Shankar Acharya case Chaju Ram v. State of J&K AIR 1971 SC 263 Dr.RamKrishan v. The State of Delhi &ors. AIR 1953 SC 318 MohdYousuf Rather v. State of J&K AIR 1979 SC 1925 and GhulamNabi Shah v. State of J&K &ors. 2005(I) SLJ 251. It is crystal clear that the relevant documents like copy of FIR copy of dossier and the copies of confidential reports relied upon by the respondents while issuing detention order have not been supplied to the 5 WP(Crl) No.32 2021 detenue. Therefore the violation of provisions of the Public Safety Act as well as Article 22(5) of the Constitution has been done by the respondents. Thus it is clear case of non supply of relevant material to the detenue to prevent the detenue from making an effective representation against his detention. For the foregoing reasons this petition is allowed and the impugned detention order bearing No. DMR INDEX 02 of 2021 dated 20.05.2021 passed by District Magistrate Rajouri is quashed. Respondents are directed to release the detenue namely Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas District Rajouri forthwith provided he is not required in any other case. The petition is accordingly disposed of on the above lines. Record so produced be returned to the respondents against proper Jammu 09.12.2021 Judge Whether the order is speaking Yes No Whether the order is reportable Yes No |
Institution of journalism is crumbling, the Rules of accreditation framed but not scrupulously followed: High Court of Himachal Pradesh | High time that the State reviews and revises the list of accreditation so as to ensure that only genuine and credible correspondents are accorded accreditation. This was said in the case of Vijay Gupta v State of H.P and Others [CWP No. 7487 of 2014] by Justice Tarlok Singh Chauhan in the High Court of Himachal Pradesh at Shimla. The facts of the case are that the petitioner is the Editor of the Hindi Weekly namely ‘Him Ujala’. He has been working in the field of journalism for the past more than 13 years yet his accreditation had been cancelled on the ground that there are certain FIRs pending against him. Hence, a plea was filed. The petitioner averred that the State stopping publication of the tenders and classified ads of the government and not renewing the accreditation of the petitioner, is a direct attack on the freedom of press. This is financially crippling his news weekly and is depriving him the facilities which are usually available to the correspondents and journalists of the State. It was further averred that the freedom of press is one of the pillars of democracy and it is imperative to ensure that there is no attack on the freedom of press and, therefore, the action of the State is illegal. Lastly, it was averred that the petitioner has been targeted because he had been publishing news items regarding corruption and irregularities committed by the political leaders, who had amassed huge wealth. On the other hand, the respondents averred that the petitioner’s accreditation and suspension was placed before the Press Accreditation Committee, which is the final authority as per Rule 4 of H.P. Press Correspondents Accreditation and Recognition Rules, 2002, who after scrutiny of the record decided to keep under suspension the accreditation of the petitioner till the final outcome of the criminal cases pending against him in various Courts. Lastly, it was averred that accreditation or recognition is not a matter of right and the same can always be suspended under the relevant Rules. The Court referred to the case of Surya Prakash Khatri vs. Smt. Madhu Trehan [1992 (2001) DLT 665], where it was said that “power of the Press is almost like nuclear power – it can create and it can destroy”. Considering this, the Court stressed that “because of mushroom growth of journalist and because of the cut-throat competition amongst the journalists themselves, their standards are declining leading to the decline of the institution of journalism itself. This is further compounded by the accreditation offered by the State Government to so called “journalists”, who in the real sense are not journalists but only enjoy the facilities accorded and available to accredited journalists”. | Hig h C o urt of H.P on 19 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACWP No. 74814.Reserved on: 26.03.2021Date of decision: 09.04.2021 _____________________________________________________________Vijay Gupta …..Petitioner.VersusState of H.P. and others ..Respondents. CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 YesFor the Petitioner : Mr. Ashok Kumar Thakur Advocate. For the Respondents : Mr. Ashok Sharma AdvocateGeneral with Mr. Vinod Thakur Addl. A.G. and Mr. BhupinderThakur Dy. A.G.Tarlok Singh Chauhan JudgeAggrieved by the suspension of his accreditationas a Journalist the petitioner has filed the instant petitionfor the grant of following substantive reliefs:“I. That a writ of certiorari may be issued therebydirecting the respondents to quash and set aside theorder passed by the State Level AccreditationCommittee on 2nd August 2014.(II) That a writ of mandamus may very kindly beissued thereby directing the respondents to renew1Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 19 04 HCHP the accreditation of the petitioner immediately whichis pending since December 2012.(III) That a writ of mandamus may further be issuedthereby directing the respondents to start allocationpublication of government related notices tenders classified advertisements in the news weekly of thepetitioner as is being given to other news agenciesor dailies etc.(IV) That the respondents may be issued a directionthereby directing them not to cancel theaccreditation of the petitioner.”2.It is averred that the petitioner is the Editor ofthe Hindi Weekly namely ‘Him Ujala’ circulated in HimachalPradesh Delhi Uttrakhand Utter Pradesh and Haryanahaving around 6 000 copies circulation per week. Thepetitioner is working in the field of journalism for the pastmore than 13 years and has served the interest of thegeneral public by bringing out the true and correct newsitems. The petitioner news weekly has been given award inthe field of journalism by the Government of HimachalPradesh i.e. ‘Laghu Patrikarita ke Kshetra me NirantarParkashan Hetu’ yet the accreditation of the petitioner hasbeen cancelled only on the ground that there are certainFIRs pending against him.2 Hig h C o urt of H.P on 19 04 HCHP 3.It is further averred that the impugned action onthe part of the respondent State in stopping publication ofthe tenders and classified ads of the government andfurther not renewing the accreditation of the petitioner is adirect attack on the freedom of press inasmuch as on onehand the petitioner’s news weekly is being financiallycrippled as the publication of the government tenders notices and classified ads is a major source of income ofthe petitioner so as to enable him to run the news weeklyand on the other hand the respondents by not renewing theaccreditation is depriving the petitioner the facilities whichare usually available to the correspondents and journalistsof the State. It is further averred that the freedom of press isone of the pillars of democrary and it is imperative to ensurethat there is no attack on the freedom of press and therefore also the action of the respondents State is illegal.4.Lastly it is averred that the petitioner has beentargeted because he had been publishing news itemsregarding corruption and irregularities committed by thepolitical leaders who had amassed huge wealth.5.The respondents have filed their reply wherein itis averred that the petitioner’s accreditation and suspension3 Hig h C o urt of H.P on 19 04 HCHP was placed before the Press Accreditation Committee which is the final authority as per Rule 4 of H.P. PressCorrespondents Accreditation and Recognition Rules 2002(for short ‘the Rules’) held on 15.07.2014 who after scrutinyof the record decided to keep under suspension theaccreditation of the petitioner till the final outcome of thecriminal cases pending against him in various Courts.6.It is further averred that the petitioner was givenDistrict Level Accreditation by the respondent departmentfor ‘Him Ujala Weekly’ which was valid upto 31.12.2012. TheDirector Information and Public RelationsWhether Sh. Vijay Gupta Editor Him Ujala Weekly newspaper Paonta Sahib District Sirmaur isa permanent resident of Himachal Pradesh.2)Whether the certificate stated to be issued bythe Executive Magistrate Paonta Sahib DistrictSirmaur on dated 19.02.2008 is fake as alleged bythe complainant. The Deputy Commissioner Sirmaur vide his letter No.Reader ADC 2014 dated 02.07.2014 informed as under:1. Sh. Vijay Gupta S o Sh. Sanjeet Kumar R o RoomNo. 14 Ward No.11 Dashmesh Complex PaontaSahib is not a permanent resident of HimachalPradesh but he has been living at Paonta Sahib forthe last few years.2. The Tehsildar Paonta Sahib has not issuedcertificate on 19.02.2008 in favour of Sh. Vijay Guptaas per his office record. The Deputy Commissioner had further informed that theStation House Officer Paonta Sahib has reported that FIRNo. 84 2014 dated 01.03.2014 has been lodged against thepetitioner under Sections 420 465 468 and 471 IPC on thecomplaint of Sh. Rajinder Thakur. 11.It was also reported that the matter pertain tovarious allegations including the allegation of fake6 Hig h C o urt of H.P on 19 04 HCHP certificate levelled by Sh. Rajinder Thakur against thepetitioner and the same are under investigation by thepolice and at this stage it cannot be ascertained as towhether the certificate is fake or genuine. 12.Lastly it is averred that accreditation orrecognition is not a matter of right and the same can alwaysbe suspended under the relevant Rules.13.Even though the petitioner has filed rejoinder however the factual matrix as set out in the reply have notbeen controverted and only the provisions of the Rules havebeen reproduced.14.I have heard learned counsel for the parties andhave gone through the material available on record. 15.Mr. Ashok Kumar Thakur learned counsel for thepetitioner has vehemently argued that the action of therespondents is arbitrary illegal as the petitioner has beendeprived of the bread and butter without following theprocess of law more particularly the provisions of Rule 14(1) of the Rules which read as under: “14. Disaccreditation or Derecognition ofCorrespondent:7 Hig h C o urt of H.P on 19 04 HCHP 1) A correspondent shall be liable to bedisaccreditated derecognized if:(a) He commits any offence under the Pressand Registrations Act orHe uses information received andfacilitates acccorded to him for a non journalistic or illegal purposes orIn the course of his duties ascorrespondent he behaves in anundignified or unprofessional manner orcommits an offence involving moralturpitude or(d)He engages himself in work other thanjournalistic such as soliciting business oradvertisements for a newspaper or newsagency or(e)he is convicted by a court of law fordefamation or any other criminal offencearising out of his writings coverage.(2)The power to disaccreditate or derecognizecorrespondent will vest in the PressAccreditation Committee which shall notexercise this power except after giving to thecorrespondent concerned a show causenotice and also an opportunity of being heard.Provided that the order of Director shallbe competent in the case of an emergencyand a grave misconduct on the part of acorrespondent to suspend his accreditation orrecognition pending the completion ofproceedings before the Press AccreditationCommittee.Provided that the order of disaccreditation or derecognition shall containreasons therefore.8 Hig h C o urt of H.P on 19 04 HCHP 3)A correspondent aggrieved by an orderpassed by the Press Accreditation Committeeunder this rule may prefer a review petitionbefore the Accreditation Committee within 15days of the passing of the order or aftercommunication of the order to him her if it ispassed in his her absence.”16.To say the least the submissions made byMr. Ashok Kumar Thakur learned counsel for the petitioneris totally fallacious and reliance placed on Rule 14istotally misplaced as the same relates to a correspondent who is liable to be disaccreditated derecognized. Whereas in the instant case the accreditation of the petitioner hassimply been suspended till the final outcome of the criminalcase in exercise of sub ruleof 14 which reads as under:“(2)The power to disaccreditate or derecognizecorrespondent will vest in the Press AccreditationCommittee which shall not exercise this powerexcept after giving to the correspondentconcerned a show cause notice and also anopportunity of being heard.Provided that the order of Director shallbe competent in the case of an emergencyand a grave misconduct on the part of acorrespondent to suspend his accreditation orrecognition pending the completion of9 Hig h C o urt of H.P on 19 04 HCHP proceedings before the Press AccreditationCommittee.Provided that the order of disaccreditation or derecognition shall containreasons therefore.”17.In this view of the matter obviously no fault canbe attributed to the action of the respondents.18.The media has often been called the handmaidenof justice the watchdog of society and the judiciary thedispenser of justice and the catalyst for social reforms.Hence it is the utmost responsibility of all the mediahouses news channels journalists and press to ensure thattheir conduct is above board and they discharge their dutiesin a responsible manner. 19.A Full Bench of the Delhi High Court in SuryaPrakash Khatri vs. Smt. Madhu Trehan 1992yet it isnoticed that more than one person of one13 Hig h C o urt of H.P on 19 04 HCHP organisation has been given accreditation andthe Rules are openly flouted. This practicedeprives many deserving Journalists to getaccreditation.iv)Even though there is a clear bar forretaining official accommodation in case ofJournalists alike Government servants havingtheir own house flats in Shimla. However it isnoticed that many of the Journalists who haveown houses flats and some have constructed theflats over the subsidised land in the JournalistsHousing Society near “Asia The Dawn” nearSankat Mochan temple are still retaining theGovernment accommodation and such tendencyneeds to be curbed forthwith and suchpossession is required to be handed over to theGovernment immediately.25.In the given facts and circumstances of the casewhile dismissing this petition this Court deems it imperativeto pass the following directions:(i)Respondent No.1 is directed to review andrevise the accreditation granted to differentcategories strictly in accordance with the Rules of2016 as amended from time to time and14 Hig h C o urt of H.P on 19 04 HCHP thereafter grant fresh accreditation strictly inaccordance with these rules.(ii) Amendment be carried out in Rules 2016making a time bound provision for granting refusing accreditation and in case of rejection aprovision be made making it mandatory forrecording reasons for such rejection. It must beensured that only one journalist from onepublication newspaper be granted accreditation(State or District level) in accordance with therules.26.The instant petition is disposed of on theaforesaid terms so also the pending application(s) if any.27.Needful be done within three months.List for compliance on 09.07.2021.9th April 2021. (GR) Judge15 |
The Court must display its conscious application of mind even while dismissing the appeal at the admission stage.: Supreme Court | Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal as upheld by the Hon’ble Supreme Court through the learned bench led by Justice S. Abdul Nazeer in the case of Hasmat Ali v. Amina Bibi & Ors. (CIVIL APPEAL NO. 7109 of 2021)(Arising out of S.L.P.(C)No.25119 of 2019) The brief facts of the case are that Late Md. Mukim, who expired during the trial, was the plaintiff and Hasmat Ali was defendant in the Civil Suit No.15 of 2009 on the file of the Civil Judge, Senior Division, Rourkela. This suit was filed to seek a declaration that the defendant was a tenant of the plaintiff till 31.03.2003, eviction of the defendant from the suit scheduled property and for certain other reliefs. The defendant entered appearance in the said suit and filed the written statement. After trial, the suit was decreed in part on 21.07.2015 and the defendant was directed to deliver vacant possession of the suit shop to the plaintiff. The defendant challenged the said judgment by filing an appeal and the Appellate Court dismissed the appeal on 04.08.2017. The defendant filed regular second appeal before the High Court and the High Court dismissed the said appeal in limine. Having regard to the contentions urged, the only question for consideration is whether the High Court was justified in dismissing the second appeal, filed under Section 100 of the CPC, in limine. The Hon’ble Supreme Court held “In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. In the instant case, since the High Court has not assigned any reasons for the dismissal of the appeal, the order needs to be set aside. Therefore, the appeal succeeds and is accordingly allowed. The order of the High Court dated 31.07.2019 is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law and in the light of the observations made above. There shall be no order as to costs.” | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 71021 Arising out of S.L.P.(C)No.251119 AMINA BIBI & ORS JUDGMENT S. ABDUL NAZEER J This appeal is preferred against the Order dated 31.07.2019 passed by the High Court of Orissa at Cuttack in Regular Second Appeal No.4017 whereby the High Court had dismissed the appeal in limine thereby confirming the judgment dated 04.08.2017 passed by the Additional District Judge Rourkela in RFA No.115 Late Md. Mukim who expired during the trial was the plaintiff and Hasmat Ali was defendant in the Civil Suit No.109 on the file of the Civil Judge Senior Division Rourkela. This suit was filed to seek a declaration Digitally signed byAnita MalhotraDate: 2021.11.2914:44:56 ISTReason:Signature Not Verified 2 that the defendant was a tenant of the plaintiff till 31.03.2003 eviction of the defendant from the suit scheduled property and for certain other reliefs. The defendant entered appearance in the said suit and filed the written statement After trial the suit was decreed in part on 21.07.2015 and the defendant was directed to deliver vacant possession of the suit shop to the plaintiff The defendant challenged the said judgment by filing an appeal and the Appellate Court dismissed the appeal on 04.08.2017. It is unnecessary to record the other factual matrix of the case for the purpose of deciding the question involved in this appeal The defendant filed regular second appeal before the High Court and the High Court dismissed the said appeal in limine. The order of the High Court dismissing the appeal is as under R.S.A. No. 4017 SI. No. of Date of ORDER WITH Office note as to actiontaken Heard Sri Mishra learned senior counsel for the Considering the submission made herein and going through the question of law this Court does not find any question of law for admitting the Second Appeal for which the Second Appeal stands dismissed Sd The order of the High Court is challenged by the defendant mainly on the ground that it is not supported by any reasons. Learned counsel for the appellant submits that the findings of the Trial Court and also by the First Appellate Court are bad in law. He submits that the appeal involves substantial questions of law and that the High Court ought to have entertained the appeal for considering these questions of law. It was argued that at any rate the High Court was not justified in dismissing the appeal in limine On the other hand learned counsel appearing for the respondent has supported the order of the High Court Having regard to the contentions urged the only question for consideration is whether the High Court was justified in dismissing the second appeal filed under Section 100 of the CPC in limine. Section 100 of the CPC reads as under “100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court if the High Court is satisfied that the case involve a substantial question of law 2) An appeal may lie under this section from an appellate decree passed ex parte 3) In an appeal under this section the memorandum of appeal shall precisely state the substantial question of law involved in 4) Where the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question 5) The appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question Provided that nothing in this sub section shall be deemed to take away or abridge the power of the Court to hear for reasons to be recorded the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question.” 10. Rules 1 to 3 of Order XLII of the CPC provide for procedure for deciding a second appeal in the following terms APPEALS FROM APPELLATE DECREES 1. Procedure.—The rules of Order XLI shall apply so far as may be to appeals from appellate decrees 2. Power of Court to direct that the appeal be heard on the question formulated by it.—At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal the Court shall formulate the substantial question of law as required by section 100 and in doing so the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court given in accordance with the provision of section 100 3. Application of rule 14 of Order XLI.—Reference in sub rule 4) of rule 14 of Order XLI to the Court of first instance shall in the case of an appeal from an appellate decree or order be construed as a reference to the Court to which the appeal was preferred from the original decree or order.” It is clear from the aforesaid provisions particularly sub sectionof Section 100 of the CPC that an appeal shall be heard only on the questions formulated by the High Court under sub sectionthereof. The expression ‘appeal’ has not been defined in the CPC. Black’s Law DictionaryVol. 2 Article 1761 it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and indeed in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction at least those which are most known in the United States are by a writ of error or by an appeal or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause entirely subjecting the fact as well as the law to a review and a retrial .” 12. Order XLII of the CPC provides for the procedure to be followed while deciding appeals from the appellate decrees. It states that the Rules of Order XLI shall apply so far as may be to the appeals from appellate decrees Words such as “so far as may be” or “insofar as” mean ‘as much’ or ‘to the extent’ or ‘to such extent’. By virtue of Order XLII Rule 1 the provisions of Order XLI are applicable to second appeal as well though not in their entirety but to certain extent. Having regard to the mandate contained in Order XLII the 1 1969SCC74 High Court while hearing a second appeal has to follow the procedure contained in Order XLI to the extent possible Section 100 of the CPC provides for a right of second appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of the subordinate court subject to the limitations provided therein. An appeal under Section 100 of the CPC could be filed both against the ‘concurrent findings’ or ‘divergent findings’ of the courts below. Sub sectionof Section 100 of the CPC states that a second appeal would be entertained by the High Court only when the High Court is satisfied that the case ‘involves a substantial question of law’. Therefore for entertaining an appeal under Section 100 of the CPC it is immaterial as to whether it is against ‘concurrent findings’ or ‘divergent findings’ of the courts below. It is needless to state that even when any concurrent finding of fact is appealed the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the High Court is satisfied after hearing the appeal that the appeal involves a substantial question of law it has to formulate that question and direct issuance of notice to the respondent. In case the appeal does not involve any substantial question of law the High Court has no other option but to dismiss the appeal. However in order to come to a conclusion that the appeal does not involve any substantial of law the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion 15. In Surat Singhv. Siri Bhagwan and Others2 this Court has laid down that for dismissal of a second appeal without being admitted the High Court is required to assign reasons. It was held thus: “29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law such question shall have to be framed under sub sectionof Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub section and are therefore mandatory and have to be followed in the manner prescribed therein. Indeed as mentioned supra the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub section 4 SCC 562 30. If however the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub section (4). It is needless to say that for passing such order in limine the High Court is required to assign the reasons in support of its conclusion.” In the instant case since the High Court has not assigned any reasons for the dismissal of the appeal the order needs to be set aside. Therefore the appeal succeeds and is accordingly allowed. The order of the High Court dated 31.07.2019 is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law and in the light of the observations made above. There shall be no order as to costs (S. ABDUL NAZEER (KRISHNA MURARI New Delhi November 29 2021 |
It may not open for the High Court to interfere under Section 482 CrPC, if statutory compliance of Section 141 of the NI Act has been made: Supreme Court | If statutory compliance of Section 141 of the NI Act has been made, it may not open for the High Court to interfere under Section 482 CrPC as upheld by the Hon’ble Supreme Court through the learned bench lead by Justice Rastogi in the case of Ashutosh Ashok Parasrampuriya & Anr. V. M/S. Gharrkul Industries Pvt. Ltd. & Ors [CRIMINAL APPEAL NO(S). 1207 OF 2021] (Arising out of SLP(Criminal) No(s). 9520 of 2014). The brief facts of the case are that the appellant nos. 1, 2, 3 and 4 are the Directors of the appellant no. 1(Ameya Paper Mills Pvt. Ltd.). It is the case of respondent no. 1complainant that it is a Private Limited Company dealing in the business of production and selling spices under the name of M/s. Gharkul Industries Private Ltd. and the appellants being well acquainted with respondent no.1 and being in need of financial assistance for their business approached respondent no.1 with a request to provide them financial assistance. Respondent no. 1 complainant provided financial assistance and on negotiations, Memorandum of Understanding was executed which was signed by appellant no. 2 Dilip Shrikrishna Andhare with consent of all the appellants in the presence of two attesting witnesses. Appellant No. 1 issued a cheque in favour of respondent no. 1 towards part payment of the amount, which was deposited by respondent no. 1 for encashment. However, the same was dishonoured due to “funds insufficient”. After dishonour of cheque, notice was issued to the appellants demanding the said amount of cheque, which was refused to be accepted by the appellants. Respondent no. 1 filed a complaint against the appellants under Section 138 of NI Act in which all the appellants agreed that the amount provided by respondent no. 1 would be refunded within one or two years. In the light of all the averments in the complaint and documents filed on record, and so also the specific averment made in paragraph 5 and 7 of the complaint that all the appellants are equally responsible for the offence committed by them and they have issued the said cheque to discharge their legal liability towards respondent no. 1complainant. The learned trial Court issued summons to the appellants herein directing them to appear before the Court and the appellants were granted bail on furnishing security of Rs.2,000/. The order came to be challenged in two separate criminal petitions filed under Section 482 CrPC Both the petitions were tagged together and came to be dismissed by the High Court. Ms. Arundhati Katju, learned counsel for the appellants submitted that there is no specific averment made and merely because the appellants are the Directors of the Company, they are not to be held vicariously liable and cannot be made accused in the proceedings. No notice relating to dishonour of cheque has been received by them. Mr. Sidhartha Dave, learned senior counsel for the appellants relying on the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another and Pooja Ravinder Devidasani v. State of Maharashtra and Another further submits that they are the nonexecutive Directors of the Company and were not responsible for the conduct of the business of the Company which is the mandatory requirement for initiation of the proceedings under Section 138 of NI Act and submits that the precondition as referred to under Section 141 of NI Act not being complied with, the order passed by the learned trial Judge in summoning the present appellants is nothing but a clear abuse of process of law and the finding which has been recorded by the High Court in the impugned judgment is not legally sustainable in law. Mr. Pallav Shishodia, learned senior counsel for the respondents, while supporting the order passed by the High Court in the impugned proceedings, submitted that the appellants claimed themselves to be a nonexecutive Directors but the record indicates that they are the Directors of the Company and responsible to the Company for the conduct of business actively involved in the business of the Company and responsible for the affairs of the Company and there is nothing to indicate that they were appointed as nonexecutive Directors. Apart from dishonour of cheque in the instant matters, there are other cheques issued by the appellants which were also dishonoured and separate complaints have been filed by the respondent(s) but because of the pendency of the present appeals before this Court, no action has been taken by the trial Judge. After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “The complaint specifically refers to the point of time when the cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. In the given circumstances, we have no hesitation in overruling the argument made by the learned counsel for the appellants. The High Court has rightly not interfered in exercise of its jurisdiction under Section 482 CrPC for quashing of the complaint. Consequently, the appeals fail and are accordingly dismissed.” | The present appeals are directed against the common judgment and order dated 18th July 2014 filed at the instance of the appellants under Section 482 of Code of Criminal Procedure 1973(herein after being referred to as “CrPC”) against the order no. 1(Ameya Paper Mills Pvt. Ltd.) in Criminal Appeal SLP(Criminal) No. 9520 of 2014 the Private Limited Company and the appellants being well acquainted with respondent no.1 complainant and being in need of financial assistance for their to provide them financial assistance. Respondent no. 1 complainant considering the relations and need of the appellants Dilip Shrikrishna Andhare(Appellant no. 2 in Criminal Appeal Memorandum of Understanding and accordingly payments were various cheques details which were furnished in the complaint Accordingly a total amount of Rs. 1 50 19 831 was received by the appellants through cheque during the period 23rd November 2007 to 12th March 2009 the details of which are as under: Bank HDFC 20 00 000 16 00 000 6 00 000 5 00 000 10 00 000 5 39 831 7 00 000 3 00 000 5 00 000 3 00 000 4 00 000 3 50 000 80 000 3 04 000 3 00 000 2 70 000 24 000 1 27 000 2 25 000 2 50 000 4 00 000 2 50 000 10 00 000 10 00 000 10 00 000 10 00 000 It is the further case of the respondent no. 1 that on 18th August 2010 a letter was issued to the appellants demanding of Rs.1 49 94 831 . According to respondent no. 1 the appellants No. 95214 issued a cheque on 2nd June 2012 in favour of valued for Rs. 10 00 000 drawn on State Bank of India Finance Branch at Nagpur Maharashtra which was deposited by respondent no. 1complainant in UCO Bank Amravati was received by respondent no. 1complainant on 4th June 2012 After dishonour of cheque notice was issued to the appellants demanding the said amount of cheque which was refused to be Authorities and thus the notice was returned with remark “not complaint against the appellants under Section 138 of NI Act in which a specific averment was made that respondent no. 1 by Appellant no. 2Dilip Shrikrishna Andhare. It is specifically contended that appellant no. 2 signed the said document with consent of all the remaining appellants in the presence of two Company which was provided and the appellants also confirmed the balance in their accounts by issuing letter dated 21st June 2012. The cheque involved in the criminal case initiated by cheque for want of sufficient funds on receipt of intimation regarding dishonour of cheque on 4th June 2012 respondent no. 1 1Company as well as on their residential address by registered post acknowledgment due on 26th June 2012 demanding amount of Rs.10 lakhs which is alleged to have been refused by the In the light of the above averments in the complaint and equally responsible for the offence committed by them and they Rs.2 000 by an Order dated 23rd November 2012 by the Court of petitions filed under Section 482 CrPC seeking quashing setting against them as well as the summons dated 10th November 2012 13. Ms. Arundhati Katju learned counsel for the appellants submits that there is no specific averment made that they have the Company which is one of the essential ingredient requirement and in the absence of such averment they are not to be held vicariously liable and cannot be made Directors or were responsible for daytoday business of the 15. Mr. Sidhartha Dave learned senior counsel for the appellants in Criminal Appeal @ SLP(Criminal) No. 7573 of 2014 further and were not responsible for the conduct of the business of the condition as referred to under Section 141 of NI Act not being complied with the order passed by the learned trial Judge in and in support of his submission has placed reliance on the judgments of this Court in S.M.S. Pharmaceuticals Ltd. Vs 16. Per contra Mr. Pallav Shishodia learned senior counsel for the respondents while supporting the order passed by the High Criminal Appeal @ SLP(Criminal) No. 7573 of 2014 claimed Form No. 32 which has been obtained from the Registrar of Companies placed on record clearly indicates that all are the business of the Company and responsible for the affairs of the trial and is not open to be examined at this stage and once the 17. During the course of submission learned counsel for the respondents submits that apart from dishonour of cheque in the which were also dishonoured and separate complaints have been filed by the respondent(s) but because of the pendency of the trial Judge. The details of the cases including this case are as S.C.C No. 7th 10 00 000 (Ten only) vide Cheque No 10 00 000 (Ten only) vide Cheque No 1 15 39 200 (One Crore Fifteen Lakhs Thirty Nine Thousand and Two Hundred only) vide Cheque Cheque No. 493020 and of this Court in S.M.S. Pharmaceuticals Ltd.(supra) would be Act the Court explaining the duty of a Magistrate while issuing to make up his mind for issuing process. If this were not the taking cognizance of an offence there is sufficient ground for proceeding’. The words ‘sufficient ground for proceeding’ again suggest that ground should be made out in the complaint for 21. After so stating the Court analysed Section 141 of the NI Act 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 Section 141 and has to be made in a complaint requirements of Section 141 cannot be said to be company is not sufficient to make the person liable to the company for the conduct of its business. The to be made liable should be in charge of and responsible for the conduct of the business of the c) The answer to Question has to be in the affirmative. The question notes that the managing director or joint managing director would be that is so holders of such positions in a company of the office they hold as managing director or joint 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 22. The same principle has been reiterated Electricity Distribution Co. Ltd. & Another Vs. Datar In the light of the ratio in S.M.S. Pharmaceuticals Ltd they are incharge of and responsible to the Company for the conduct of the business of the Company and if statutory it comes across some unimpeachable incontrovertible evidence which is beyond suspicion or doubt or totally acceptable case is made out against the particular Director for which there makes them vicariously liable for the activities of the defaulter Company as defined under Section 141 of the NI Act In that perception whether the appellant had committed the offence 25. We are concerned in this case with Directors who are not signatories to the cheques. So far as Directors who are not the signatories to the cheques or who are not Managing Directors or Joint Managing Directors are concerned it is clear from the against the Director. That is why this Court in S.M.S Pharmaceuticals Ltd.(supra) observed that the question of Act read in the light of the powers of a Magistrate referred to in Sections 200 to 204 CrPC which recognise the Magistrate’s discretion to take action in accordance with law. Thus it is imperative that if this basic averment is missing the Magistrate is In the case on hand reading the complaint as a whole it is were responsible for its business and all the appellants were reading the complaint so as to come to a conclusion that the point of time when the cheques were issued their presentment given circumstances we have no hesitation in overruling the Indisputedly on the presentation of the cheque of Rs.10 00 000 (Rupees Ten Lakhs only) dated 2nd June 2012 the and after making due compliance complaint was filed and after recording the statement of the complainant proceedings were initiated by the learned Magistrate and no error has been are the nonexecutive Directors in the light of the documentary In our considered view the High Court has rightly not 31. Before concluding we would like to observe that the are the old cases instituted in the year 2012 and could not be Court we may consider it appropriate to observe that let all the three cases of which a reference been made in para 17 of this possible on its own merits in accordance with law without being judgment not later than six months from the date parties record 32. Consequently the appeals fail and are accordingly dismissed 33. Pending application(s) if any stand disposed of |
Retrospective seniority, unless directed by the court or expressly provided by the applicable Rules, should not be allowed: Supreme Court of India | Retrospective seniority unless directed by the court or expressly provided by the applicable rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted as held by Justice Hrishikesh Roy in the case of The State Of Bihar & Ors. Vs Arbind Jee[CIVIL APPEAL NO. 3767 OF 2010]. The respondent was represented by Mr. Satvik Misra, learned counsel, and the learned counsel appearing for the appellants was Mr. Abhinav Mukerji. The brief facts of the case are that the father of the respondent was working as a Home guard and after he died in harness, the respondent applied for a compassionate appointment but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order through SLP(C) No. 6437 of 1993. By the order of the Supreme Court, the respondent was appointed “Adhinayak Lipik’ on 27.2.1996. Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on the direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court directed the authority to consider the respondent’s seniority from 5.12.1985. The above order passed by the learned Single Judge was challenged by the State. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors where the court speaking through Justice M. P. Thakkar rightly held that “The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue.” The principles enunciated in Shitla Prasad Shukla are applicable to the case at hand as he is claiming seniority benefit for 10 years without working for a single day during that period. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala, to argue for retrospective seniority. Here, the bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: “The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court that has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009.” After hearing both sides, the Hon’ble Supreme Court observed that the respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within a reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. The Hon’ble Court while quashing the impugned orders passes by the Patna High Court, held that “The action of the authorities in the determination of the respondent’s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants is recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of an analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.” Click here to read the judgement Judgment reviewed by – Aryan Bajaj | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3767 OF 2010 THE STATE OF BIHAR & ORS …APPELLANT(S …RESPONDENT(S JUDGMENT Hrishikesh Roy J This appeal is directed against the judgment and order dated 29.9.2008 of the Patna High Court in LPA No. 24. The father of the respondent was working as a Home guard and after he died in harness the respondent applied for compassionate appointment. The concerned Committee recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and it was made clear that appointment of the enlisted persons will be effective only after due satisfaction of their capability educational qualification etc The recommended persons appeared in the Home Guard Headquarter as directed but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik he challenged the High Court order through SLP(C) No. 64393. The resultant Civil Appeal No. 2296 was allowed by the Supreme Court with the following “….We therefore allow this appeal and direct the respondents to appoint the appellant to the post of ‘Adhinayak Lipik’ in the Homeguard Department State of Bihar within one month from the date of communication of this order.” Following the above direction of the Supreme Court the respondent was appointed on 27.2.1996 by the order No. 108 of 1996 dated 10.2.1996 issued by the Commandant of the Bihar Home Guard Bn. Patna. Six years after joining service an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court in the respondent’s CWJC no. 6683 2003 directed the authority to consider the respondent’s seniority from 5.12.1985. 5. The above order passed by the learned Single Judge was challenged by the State and the Division Bench on 29.9.2008 while dismissing the LPA no. 245 of 2008 noted that the respondent was denied appointment on the ground that he did not conform to the physical standards applicable to a Constable and eventually the Supreme Court directed appointment of the respondent as Adhinayak Lipik in the Home Guard Department. Therefore the appointment should relate back to the date of the initial order on 20.11.1985. With this observation the State’s LPA was dismissed by the order impugned in this appeal We have heard Mr. Abhinav Mukerji learned counsel appearing for the appellants. The respondent is represented by Mr. Satvik Misra learned counsel The issue to be answered here is whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service. It is important to bear in mind that the order No 1169 1985 whereby the respondent along with few others were shortlisted for compassionate appointment did not materialize and was in fact refused for the respondent as he failed to meet the physical standards. Eventually following the direction issued by this Court on 2.1.1996 to appoint the respondent within one month from the date of communication of the Supreme Court’s order the respondent was appointed on 10.2.1996. The respondent joined service without demur and made no claim for any retrospective effect to his appointment until addressing the representation on 10.9.2002 to claim seniority from 5.12.1985 In the previous round before this Court the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover the respondent even after entering service did not immediately claim the benefit of retrospective appointment and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002 10. As earlier noted the respondent entered service only on 10.2.1996 and yet under the impugned judgment the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules should not be allowed as in so doing others who had earlier entered service will be impacted. 11. To challenge the conferment of retrospective seniority the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors.1 where this court speaking through Justice M. P. Thakkar rightly held that “10. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one but is not violated the Court will not overturn the determination unless it would be unfair not to do so…” 1 SCC 185 12. The principles enunciated in Shitla Prasad Shukla supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors.2 Justice Dr. D. Y. Chandrachud speaking for the Court opined as under: “41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct 2 16 SCC 28 Recruit Class II Engineering Officers’ Association v State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath4 and State of Uttaranchal v Dinesh Kumar Sharma.5” 13. The learned counsel for respondent relies on C Jayachandran vs. State of Kerala6 to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed ..The appellant has submitted the representation on 11 4 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18 9 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances Therefore it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30 3 2009. The appellant having been factually appointed vide communication dated 22 12 2010 he could not assume or claim to assume charge prior to such offer of appointment The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process.” 32 SCC 715 4 1991 Supp.SCC 334 51 SCC 683 65 SCC 230 As can be seen from the above extracted passage the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this court’s order. The court’s direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment he never raised any grievance within reasonable time for fixing his date of appointment as 20.11.1985. Six years later only on 10.9.2002 he made a representation and the same was rejected with the observation that on 1.8.1985 the respondent was yet to enter service. Proceeding with these facts it is clearly discernible that the respondent has slept over his rights and never earlier pointedly addressed his present claim either to the Supreme Courtor to the State soon after his appointment. Moreover his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore the ratio in C. Jayachandran will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover the action of the authorities in determination of the respondent’s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect the benefit of notional seniority may be conferred on the deprived individual. However the present is not a case of that category. 15. Supported by our above discussion we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their [HRISHIKESH ROY SEPTEMBER 28 2021 Page 1 |
Bail was denied for circumspect of a serious criminal matter by the High Court of Meghalaya | For getting bail in a successive bail application the counsel of the petitioner should make some changes in the facts and circumstances of the case. Merely stating the previous things would not work. The bail petition in the matter of Shri Abdul Kalam SK Vs. State of Meghalaya [BA. No. 5 of 2021] was denied by Hon’ble Mr. Justice W. Diengdoh. This bail petition was brought for one of the main accused and this matter was taken up via video conferencing. It was a case of gang rape with a minor girl of 16 years 8 months, who was allegedly raped by three men when she was captured by them while returning home from the tuition classes. When the father of the minor girl reached home he saw his daughter profusely bleeding and was informed that she had been raped by three men. The FIR was lodged in the nearest police station. The counsel of the petitioner stated that the girl had an affair with the accused and the alleged victim was constantly in touch with her on Facebook, WhatsApp & Instagram, and the girl wanted to elope with the accused in against of which the accused was persuading her. According to the counsel of the petitioner, a Village Panchayat was also set up in the house of the accused of the marriage of the two, in which the parents of the alleged victim were also called for taking their consent to which they did not attend. The advocate on appearing on behalf of the State strongly opposed the bail petition and on the matter of alleged affair between the accused and the victim, it was stated by the counsel of respondents that the victim in her statement is indicating that she was raped by three men. The court after hearing both sides decided that in this successive bail partition there is a lack of new circumstances and merely previous facts are stated by the petitioner. The court stated – “it is to be noted here that this is a second bail application of the Petitioner for the same accused Habibul Islam before this Court, but no argument or specific averment has been made by the Petitioner in this regard. It is well settled that in the event of a bail application having been rejected, any number of successive bail applications can be preferred, however, the subsequent application have to indicate a change circumstance(s) to allow the Court to look afresh at the matter for without an averment to the changed circumstances, the second application, as in this instant case, would be deemed to be seeking review of the earlier order which is not permissible in criminal law. While alluding to the principles of bail which has been crystalized in a catena of judgments of the Supreme Court as well as High Courts, it is a foregone conclusion 6 that one of the main and basic consideration for grant of bail is the nature and gravity of the alleged offence depending of the particular facts and circumstances of the case. In the case involving the accused Habibul Islam, as mentioned above, it centers upon an accusation of not only rape simpliciter, but gang rape, that is, a case of sexual assault by more than one person. In such a case, this Court would view the matter seriously with circumspective. This being the case, it would not be wise to release the accused on bail at this stage.” | Serial No. 01 Regular List BA. No. 21 Shri Abdul Kalam SK HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 28.06.2021 State of Meghalaya Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) : Mr. S.A.Sheikh Adv. For the Respondent(s) i) Whether approved for reporting in Mr. H.Kharmih G.A. Law journals etc. ii) Whether approved for publication in press: This matter has been taken up via video conferencing. This is an application under section 439 Cr.P.C. filed by the Petitioner Shri Abdul Kalam Sk with a prayer for grant of bail on behalf of Shri Habibul Islam who is one of the accused in SpecialCase No 320 pending in the court of the learned Special Judge(POCSO) West Garo Hills Tura. The brief facts of the case as narrated by the Petitioner in his application is that on 21.08.2020 an FIR was lodged by one Shri Abdus Salam Akand before the Officer in Charge Tura Women Police Station West Garo Hills Tura stating that on 20.08.2020 at about 5.30 pm when he came home he saw his minor daughter aged about 16 years 8 months profusely bleeding and on enquiry he was informed that she was abducted and gang raped by three persons viz Habibul Islam@ Habbul Mokabbir Hussain and Israful Hoque who had abducted her while she was no her way to tuition class by gagging her mouth and blind folding her after which she was taken to the house of Habibul Islam where she was raped by them. She was later found by one Smti Anisa Khatun who brought her home. The Informant then took her to the Phulbari Police Station and then to the Phulbari PHC from where she was referred to the Maternity and Child hospital Tura for admission. The Petitioner has further stated that during the course of investigation the accused Habibul Islam voluntarily submitted to the custody of the police on 27.08.2020 and as duly arrested and was produced before the court of the Special Judge(POCSO) Tura. It is also stated that a number of bail applications were filed before the Trial Court which were rejected and one such application was filed before this Court which was rejected on 12.03.2021. Mr. S.A. Sheikh learned Counsel for the Petitioner has submitted that the said FIR was lodged only as a counter blast to the fact that admittedly there is a love affair between the alleged victim and the accused person herein but for the fact that she is still a minor being about 17 years of age. However there are evidence of exchange of message through whatapps Instagram Messenger and Facebook between the two which messages were deleted by the victim after the said incident. It is also further submitted that the victim wanted to elope with the accused Habibul who could not persuade her to return home. This fact was also known to many people in the locality. 8. There is also a reference made to the role of the village Panchayat who held a meeting in the house of the Petitioner for the performance of marriage between the two but since the victim is only 17 years old the consent of the parents of the victim was sought for but they did not attend the said meeting and the members of the Panchayat took back the victim to her house after which the said FIR was lodged. The learned Counsel has also submitted that the preliminary Charge Sheet was filed in the case and the deposition of the victim was recorded by the Trial Court on 09.04.2021 the next date fixed being 23.05.2021 when the case was not taken up due to the prevailing situation. Under the circumstance it is submitted that further custody of the accused will not serve any purpose he is therefore entitled to be enlarged on bail. Furthermore it is submitted that the accused is innocent of any offence as alleged since the medical report of the victim has shown that there was no sign of sexual assault the fact that the accused is a college student who is pursuing his final year B.A. from South Salmara College under the Gauhati University is also one of the grounds taken for consideration by this Court. The learned counsel of the Petitioner has cited the case of “Dataram Singh v. State of Uttar Pradesh & anr”3 SCC 22 at para 1 2 3 & 4 and the case of “Vijaya Lakshmi and anr. v. State Rep. by The Inspector of Police All Women Police Station Erode. Crime No. 2 of 2018 & Indhran @ Siva” in Crl.O.P. No. 232 if 2021 vide order dated 27.01.2021 and has submitted that in the case of Dataram Singh the Hon’ble Supreme Court has reiterated the principles of bail as a general rule and putting a person in jail as an exception while in the case of Vijaya Lakshmi the Hon’ble Madras High Court considering the facts and circumstances of the case therein taking into account that there was a love relationship between the alleged victim and the accused involved in a POCSO case the court in an application under section 482 CrPC has allowed the same and has quashed the case pending before the Trial Court. It is finally prayed that this Court be pleased to grant bail to the accused on any conditions to be imposed which would be duly complied Mr. H.Kharmih the learned G.A. appearing on behalf of the State has strongly opposed this application on the ground that no case is made out for grant of bail to the accused person. The learned GA has also submitted that the question of love affair between the victim and the accused person cannot be established inasmuch as the victim has given her statement clearly indicating that she was raped by three persons including the accused person herein. Upon hearing the learned Counsels for the parties facts not necessary to be repeated what is apparent from the records produced before this Court today is that the fact that the FIR was lodged to bring to the attention to the police about the alleged abduction and rape of the said minor victim girl is not denied. The records of the case pending before the Trial Court has been called for and duly produced before this Court and on perusal of the same the stage of the case as is noticed is at the stage of evidence with the evidence of the victim already recorded. It is also noticed that the Petitioner in this instant application has touched upon the merits of the case inasmuch as the contents of the medical report was sought to be projected before this Court to question the same. However in an application for grant of bail this Court is not required to go into the merits of the evidence. The Petitioner has however made an averment confirming the fact that the stage of the case is at the recording of evidence of the witnesses the evidence of the victim having been recorded. Again it is to be noted here that this is a second bail application of the Petitioner for the same accused Habibul Islam before this Court but no argument or specific averment has been made by the Petitioner in this regard. It is well settled that in the event of a bail application having been rejected any number of successive bail applications can be preferred however the subsequent application have indicate a change circumstance(s) to allow the Court to look afresh at the matter for without an averment to the changed circumstances the second application as in this instant case would be deemed to be seeking review of the earlier order which is not permissible in criminal law. In the case of Dataram Singh cited by the learned counsel for the Petitioner at paragraph 6 of the same the Hon’ble Supreme Court has also held as follows: “6. However we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered it must be exercised judiciously and in a humane manner and compassionately. Also conditions for the grant of bail ought not to be so strict as to the incapable of compliance thereby making the grant of bail illusory”. In the above the Hon’ble Supreme Court has held that granting of bail is entirely within the discretion of the Judge hearing the matter this application of discretion has to be judicious in nature and as such facts and circumstances of each case has to be taken into account. While alluding to the principles of bail which has been crystalized in a catena of judgments of the Supreme Court as well as High Courts it is a foregone conclusion that one of the main and basic consideration for grant of bail is the nature and gravity of the alleged offence depending of the particular facts and circumstances of the case. In the case involving the accused Habibul Islam as mentioned above it centers upon an accusation of not only rape simpliciter but gang rape that is a case of sexual assault by more than one person. In such a case this Court would view the matter seriously with circumspective. This being the case it would not be wise to release the accused on bail at this stage. The fact that the case is at the evidence stage it appears that the Learned Special Judge has proceeded with the matter expeditiously and as such it would be appropriate to allow the Trial Court to continue with the same till a final verdict as regard the accused as well as the other co accused is arrived at. Considering the submission of the learned counsel for the Petitioner as regard the fact that the accused Habibul Islam is a student pursuing his studies in BA this Court hereby directs the jail authorities to provide all the necessary facilities even by allowing the accused UTP to attend his classes via Online mode. In view of the above observations this application does not merit consideration and the same is hereby dismissed. Registry to send back the case records. Matter disposed of. No cost. Judge “N. Swer Stenographer” |
No recognized degree of MBBS in Alternative Medicine and no such degree is recognized by the Government of India: High Court of Jharkhand | There is no dispute to the fact that the clinical establishment was being run by a person on the basis of forged and unrecognized degree and diploma, as there is no recognized degree of MBBS in Alternative Medicine and no such degree is recognized by the Government of India. Similarly, the Diploma in Medical Laboratory was also a forged and unrecognized degree. This judgement was consolidated in the high court of Jharkhand by HON’BLE MR. JUSTICE H.C. MISHRA HON’BLE MR. JUSTICE RAJESH KUMAR in the matter of Rani Seva Sadan, Garhwa, through its proprietor Sri DharamdeoVishwakarma versus The State of Jharkhand [L.P.A. No. 82 of 2019 With I.A. No. 6514 of 2020]. The appellant establishment had challenged the order dated 09.10.2018, passed by the respondent No. 1, Principal Secretary, Health, Medical, Education & Family Welfare Department, Government of Jharkhand, imposing the penalty of Rs. 50,000/- upon the petitioner establishment and also sealing its premises. The appellant establishment was a medical clinic established by one Dr. R.L. Jaiswal, who was having MBBS degree. The certificate of provisional registration was granted to it on 22.09.2013 as a clinical establishment under Section 15 of The Clinical Establishments (Registration & Regulation) Act, 2010, (hereinafter referred to as the “Act”), for providing medical services as Hospital, Polyclinic and Pathology under Allopathic System of Medicine. The said certificate was valid for a period of one year from the date of its issuance, thereafter the certificate of registration was not renewed by the petitioner establishment, and there were also complaints against the petitioner establishment on the portal of the Hon’ble Chief Minister of the State. The court relied upon the decision of the Hon’ble Apex Court in Escorts Farms Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. & Others, reported in (2004) 4 SCC 281, and in Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati & Others, reported in (2015) 8 SCC 519, “wherein the law has been laid down that the rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits, and that it is not required to be followed where it is felt that a fair hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision maker.”
This court stated that, “In view of the fact that there was no dispute to the fact that the clinic was run by the person having forged or unrecognized degree and diploma, no useful purpose was going to be served by remitting the matter for following the principles of natural justice.” | 1 L.P.A. No. 819 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 819 With I.A. No. 65120 Rani Seva Sadan Garhwa through its proprietor Sri DharamdeoVishwakarma. 1. The State of Jharkhand. …. …. Appellant through Principal Secretary Health Medical Education & Family Welfare Department Government of Jharkhand Ranchi. 2. Jharkhand State Council cum Appellate Authority under The Clinical EstablishmentsAct 2010 Ranchi. 3. Deputy Commissioner Garhwa. 4. Civil Surgeon Garhwa. 5. Additional Chief Medical Officer Garhwa. …. PRESENT HON’BLE MR. JUSTICE H.C. MISHRA HON BLE MR. JUSTICE RAJESH KUMAR For the Appellant: For the Respondents : M s. Baibhaw Gahlaut Advocate M s. Abhijit Kumar Advocate Respondent s The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities were good. C.A.V. on 24.02.2021 Pronounced on 04.03.2021 H.C. Mishra J. : Heard learned counsel for the appellant and the learned for the The writ petitioner appellant is aggrieved by the impugned Judgement dated 07.01.2019 passed by the Writ Court in W.P.(C) No. 5542 of 2018 dismissing the writ application wherein the order dated 09.10.2018 as contained in Annexure 16 to this memo of appeal passed by the respondent No. 1 Principal Secretary Health Medical Education & Family Welfare Department Government of Jharkhand imposing the penalty of Rs.50 000 upon the petitioner establishment and also sealing its premises. The appellant establishment is a medical clinic established by one Dr. R.L. Jaiswal who was having MBBS degree. The certificate 2 L.P.A. No. 819 of provisional registration was granted to it on 22.09.2013 as a clinical establishment under Section 15 of The Clinical Establishments Registration & Regulation) Act 2010 for providing medical services as Hospital Polyclinic and Pathology under Allopathic System of Medicine. The said certificate was valid for a period of one year from the date of its issuance. It appears that thereafter the certificate of registration was not renewed by the petitioner establishment and there were also complaints against the petitioner establishment on the portal of the Hon’ble Chief Minister of the State. On 30.10.2017 an inspection team headed by Additional Chief Medical Officer Garhwa establishment. One Dr. D.D. Vishwakarma was found to be practicing in the clinic and it was informed that Dr. R.L. Jaiswal in whose name the clinical establishment was registered was not present there as he was residing in the State of Bihar. In the clinical establishment there was a name plate of Dr. D.D.Vishwakarma with his qualification showing as MBBS General Physician. This degree for Alternative Medicine in MBBS was not a valid MBBS degree. The said Dr. D.D.Vishwakarma was also found to run the pathology laboratory in the clinical establishment and he produced the Diploma in Medical Laboratory issued by Central Kolkata Medical and Technological Research Institute. The said institute was also not a recognized institute and as such the said diploma was also found to be forged. Accordingly finding that the petitioner establishment was being run on the basis of the forged degree and diploma by a person in whose name even the registration was not there the establishment was sealed. 4. Against the said order an appeal was preferred before the State Council constituted under Section 8 of the Act which gave a hearing to the appellant on 26.09.2018. After hearing both the sides by the impugned order dated 09.10.2018 passed by the Appellate Authority due to the aforesaid illegalities in the establishment the penalty of Rs.50 000 was imposed upon the establishment as provided under Section 40(1) of the Act and it was also ordered that appropriate legal action be taken against the persons practicing in the clinic on the basis of forged degree and diploma. It was further ordered that the 3 L.P.A. No. 819 establishment be allowed to be opened only after fresh registration in accordance with law and after realization of the penalty and the other legal action. 5. Against the order passed by the Appellate Authority the petitioner establishment preferred the writ application before this Court which was numbered as W.P.No. 55418. The writ application was dismissed after adjudication by the Hon’ble Single Judge by order dated 07.01.2019. The main ground of challenge to the order passed by the Appellate Authority was that the petitioner clinical establishment was sealed without giving an opportunity of being heard. In course of hearing of the writ application the Court put a query upon the learned counsel for the petitioner as to whether he was disputing the fact that the MBBS degree obtained from Central Kolkata Medical and Technological Research Institute was from an unrecognized institute which fact was not disputed by the learned counsel for the petitioner and accordingly it was held that since the fact was not disputed there was no question of remitting the matter before the authority for following the principles of natural justice as that would only lead to a futile exercise and empty formality. The Writ Court relied upon the decisions of the Hon’ble Apex Court in Escorts Farms Ltd. Vs. Commissioner Kumaon Division Nainital U.P. & Others reported in4 SCC 281 and in Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise Gauhati & Others reported in 8 SCC 519 wherein the law has been laid down that the rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits and that it is not required to be followed where it is felt that a fair hearing would make no difference meaning that a hearing would not change the ultimate conclusion reached by the decision maker. In view of the fact that there was no dispute to the fact that the clinic was run by the person having forged or unrecognized degree and diploma no useful purpose was going to be served by remitting the matter for following the principles of natural justice. The Writ Court also found that it is a settled principle of law that the writ of certiorari can be issued in case the order is passed by the authority 4 L.P.A. No. 819 having no jurisdiction or it is contrary to statutory provision or results in miscarriage of justice and since these points were not involved in the writ application there was no merit therein and the same was dismissed. Aggrieved thereby the present L.P.A. has been preferred by the petitioner appellant. During the pendency of the L.P.A. an Interlocutory Application No. 6514 of 2020 has been filed with a prayer for de sealing the petitioner establishment on the ground firstly that the sealing of the premises was not in accordance with law and secondly the premises could not be kept sealed for indefinite period. Learned counsel for the appellant has submitted that the impugned Judgement passed by the Hon’ble Single Judge cannot be sustained in the eyes of law in as much as the Hon’ble Single Judge failed to appreciate that there was an express bar under Section 34 of the Act for entering into the clinical establishment without giving any notice and since no notice was given to the petitioner by the respondent No. 5 before entering into the premises all the subsequent actions are absolutely illegal. Learned counsel has also submitted that it is a well settled principle of law that the sealing of the immovable property cannot be done indefinite period of time. In this connection learned counsel has placed reliance upon the decision of this Court in S.R.P. Oil Pvt. Ltd. Vs. Another in 2020 SCC OnLine Jhar 813. Learned counsel for the appellant has also submitted that the power of sealing of property carried civil consequences and a person can be deprived of the property only after following the procedure prescribed in accordance with law. In support of this contention learned counsel has placed reliance upon the decision of the Hon’ble Apex Court in M.C. Mehta Vs. Union of India & Ors. reported in 2020 SCC OnLine SC 648. Learned counsel submitted that since there is no provision in the Act for sealing the property and there is express bar for entering into the property without giving any prior notice the impugned action cannot be sustained in the eyes of law and as such the order dated 09.10.2018 passed by the Appellate Authority respondent No. 1 5 L.P.A. No. 819 as also the impugned Judgement dated 07.01.2019 passed by the Hon’ble Single Judge in W.P.(C) No. 5542 of 2018 cannot be sustained in the eyes of law. 10. Learned counsel for the State on the other hand has opposed the prayer submitting that in the present case there is no dispute to the fact that the clinical establishment was being run by a person on the basis of forged and unrecognized degree and diploma as there is no recognized degree of MBBS in Alternative Medicine and no such degree is recognized by the Government of India. Similarly the Diploma in Medical Laboratory was also a forged and unrecognized degree. It has also been submitted by learned counsel that on the date of inspection of the medical establishment it was not having any certificate of registration and there is an express bar in the Act for running a clinical establishment without registration. Learned counsel also pointed out that Section 41 of the Act provides for penalty for non registration and for first contravention the penalty is upto Rs.50 000 and for second contravention the penalty prescribed is up to Rs.2 00 000 and for any subsequent contravention the penalty may extend to Rs.5 00 000 . Learned counsel accordingly submitted that there is no illegality in the impugned action whereby the penalty has been imposed and the clinical establishment has been sealed as it was being run on the basis of forged diploma and degree. 11. Having heard learned counsels for both the sides and upon going through the record we find that there is no dispute to the fact that on the date of inspection the appellant clinical establishment was not having a certificate of registration. There is an express bar under Section 11 of the Act providing that no person shall run a clinical establishment unless it has been duly registered in accordance with the provisions of the Act. Similarly Section 20 of the Act provides that the certificate of registration shall be non transferable and accordingly Dr. R.L. Jaiswal it could not be run by D.D.Vishwakarma that too on the basis of forged and unrecognized degree and diploma. It is also not in dispute rather it is an admitted fact that the degree in MBBS is no degree in the eyes of law and as such displaying any such degree on the establishment the clinical establishment was registered the name of 6 L.P.A. No. 819 amounts to running the establishment on the basis of the forged degree. Similarly it is not disputed that even the Diploma in Medical Laboratory issued by Central Kolkata Medical and Technological Research Institute was not a recognized diploma in the eyes of law and accordingly this was also a forged diploma. 13. The Clinical Establishment Registration & Regulation) Act 2010 has been established with a definite object to provide for the registration and regulation of the clinical establishments with a view to prescribe minimum standards of facilities and services which may be provided by them so that mandate of Article 47 of the Constitution for improvement in public health may be achieved. Accordingly if it was found that the clinical establishment was being run on the basis of forged and unrecognized degree and diploma and still allowing the same to operate shall certainly frustrate the very object of the Act for which it was enacted and the same cannot be allowed to be continued. Accordingly we find no force in the contention of the learned counsel for the appellant that the closure of the establishment was not in accordance with law. 14. The Appellate Authority respondent No. 1 while disposing of the appeal of the writ petitioner appellant by order dated 09.11.2018 has passed three orders imposition of penalty of Rs.50 000 under Section 40(1) of the Act proper legal action be taken against the person practicing medicine on the basis of the forged degree and diploma andupon the realization of penalty and the legal action the establishment be allowed to be opened only after fresh registration in accordance with law. 15. We find that the penalty has been imposed in accordance with law as provided under Section 40(1) of the Act. The second order of appropriate legal action against the persons practicing medicine on the basis of forged degree and diploma also cannot be interfered with as there can be no illegality in the said order. Similarly in view of the express prohibition under Section 11 of the Act the clinical establishment cannot be allowed to be run without being duly registered in accordance with law and the Appellate Authority has stated that after fresh registration the establishment shall be allowed to be opened. 7 L.P.A. No. 819 16. Accordingly we do not find any merit in the submission of the learned counsel for the appellant that the appellant establishment has been closed or sealed for an indefinite period. The Appellate Authority has specifically stated that the clinical establishment shall be allowed to be opened only after fresh registration which is the clear mandate of law under Section 11 of the Act. 17. Even otherwise it is well settled principle of law that if setting aside any illegal order gives rise to other illegal action the Writ Court shall not exercise its jurisdiction. In the present case if the petitioner establishment is allowed to be de sealed this shall give rise to an illegal action of running the clinical establishment without there being any registration in accordance with law which shall be in the teeth of Section 11 of the Act. In view of the foregoing discussions we do not find any illegality either in the Appellate Authority’s order dated 09.10.2018 as contained in Annexure 16 of the memo of appeal or in the impugned Judgement dated 07.01.2019 passed by the Hon’ble Single Judge in W.P.(C) No. 5542 of 2018 worth any interference in exercise of Letters Patent Appellate jurisdiction. 19. There is no merit in this L.P.A. and the same is accordingly dismissed. The Interlocutory Application for de sealing the property also stands dismissed for the same reasons discussed above. Rajesh Kumar J.: I agree. (Rajesh Kumar J.) Jharkhand High Court Ranchi. Dated the 4th of March 2021. D.S. N.A.F.R. |
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: High Court of J&K and Ladakh | 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. This was held by the High Court of J&K through a learned bench of The Chief Justice and Justice Vinod Chatterji Koul in the case of Ghulam Qadir Bhat & Ors Vs Financial Commissioner (Revenue) & Ors [LPAOW No. 33/2017]. The controversy raised in this appeal was regarding the two mutations entries No. 156 dated 28 Fag 1996 Bikrami Samvat (corresponding to the year 1939-40 AD) and to the mutation entry 470 dated 10.08.1999 which was alleged to be of the 10th day of the 8th month of 1999 Bikrami Samvat whereas the other side contends that it is of the year 1999 AD of the Georgian Calendar. In the instant appeal the dispute only remained with regard to the mutation entry No. 470. 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, learned counsel for the petitioner, is that the aforesaid mutation No. 470 was attested on 10th day of 8 th 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. Mr. Azhar-ul-Amin, learned counsel for the respondent, 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. The Hon’ble High Court after hearing both the parties, relied on Judgments in the cases of Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors (2015) 3 SCC 695, Zaina vs. Financial Commissioner & Ors. 1983 SLJ 1, n State of Gujarat vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297, to conclude that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised and stated that “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 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 |
CM’s approval to committee’s decision renders it impliedly valid: Uttarakhand High Court | A committee’s decision which has been approved by the Chief Minister of the state shall implicitly be valid. If a recommendation is made by the chief minister itself, the decision of the committee, taking a decision under subsection (1) of Section 27 of the Transfer Act shall be justified. This assertion was made by the Uttarakhand High Court presided by J. Sharad Kumar Sharma in the case of Dr. Sandhya Raj vs. State of Uttarakhand & others [WRIT PETITION (S/B) No. 51 of 2021]. The petitioner, in the present writ petition, has given a challenge to the impugned order of transfer, passed by the respondent, whereby her services of the petitioner, which she was discharged, as an In-charge Medical Officer, E.S.I. Dispensary, Jaspur, District Udham Singh Nagar, have been sought to be transferred from the said place of posting to Kotdwar, District Pauri Garhwal. The impugned order of transfer had been passed by making a reference to the provisions contained under Section 27 by the Secretary of, Labour Department, to the State of Uttarakhand, as well as Section 18(4) of the Transfer Act. Further, the petitioner contended that the enquiry did not reflect any serious misconduct. The learned Senior Counsel for the petitioner argued the writ petition under the pretext that, the impugned order of transfer, where it makes a reference to Section 27, it does not make a reference to the compliance of Section 27(2), which contemplates a ratification/approval of the decision, which had been taken by the Committee, which is provided under Section 27(1) of the Act. The Additional Chief Standing Counsel was granted time to complete his instructions and make his statement about the compliance of Section 27(2) of the Act. The Uttarakhand High Court held, “A challenge to the subsequent recommendation was made by a next superior authority i.e. none other than the Chief Minister of the State, would have its automatic implication that the decision of the Committee, thus, constituted was justified and is not the subject matter of the challenge in the present writ petition.” The Honourable Court further held, “For the aforesaid reasons and coupled with the fact that the information supplied by the learned Additional Chief Standing Counsel for the State today that the approval of the decision of the Committee, taking a decision under subsection (1) of Section 27, has been granted by the Chief Minister, I do not find any apparent error in the order of transfer.” Consequently, the writ petition lacks merit and the same was, accordingly, dismissed. Click here to read the judgement | IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 28TH DAY OF JANUARY 2021 HON’BLE SHRI JUSTICE SHARAD KUMAR SHARMA WRIT PETITIONNo. 521 BETWEEN: Dr. Sandhya Raj aged about 32 years W o Shri Kamal Kishor presently posted as In charge Medical Officer at Employee State Dispensary Jaspur District Udham Singh Nagar By Mr. D.S. Patni Senior Advocate assisted by Mr. Dharmendra Barthwal Advocate) 1. State of Uttarakhand through Secretary Labour & Employment Dehradun 2. The District Magistrate Udham Singh Nagar 3. The Director Employees State Corporation Makkawala Dehradun. 4. The Chief Medical Officer Employees State Insurance Corporation Makkawala Dehradun. 5. Shri Narendra Singh Chauhan son of Shri Harpal Singh resident of Patti Chauhan Jaspur District Udham Singh Nagar Uttarakhand. By Mr. Puran Singh Bisht Additional Chief Standing Counsel for the State of Uttarakhand respondent nos. 1 2 and Ms. Sakshi Singh & Mr. C.K. Sharma Advocates for respondent no. 3) JUDGMENT The petitioner in the present writ petition has given a challenge to the impugned order of transfer dated 20.01.2021 as was passed by respondent no. 1 whereby her services of the petitioner which she was discharging as an In charge Medical Officer E.S.I. Dispensary Jaspur District Udham Singh Nagar have been sought to be transferred from the said place of posting to Kotdwar District Pauri Garhwal. The impugned order of transfer as had been passed by the Secretary Labour Department to the State of Uttarakhand had been passed by making a reference to the provisions contained under Section 27 as well as Section 18(4) of the Transfer Act. Both the provisions are extracted “27. Removal of difficulties in the application of the Act. After the promulgation of this Act this Act shall have over riding effect on Acts Annual Transfer Policies of other departments: Provided that if any change in any provision of this Act is required by any department due to any specific circumstances of the department or any deviation in necessary or relaxation is indispensable the proposal of such changes deviations relaxations shall be submitted with reasons before the committee constituted under the Chairmanship of Chief Secretary and consisting the following members Secretary Forest and Infrastructure Development Commissioner Secretary Agricultural Production Commissioner and relaxations shall be allowed after the approval of the Chief Minister on recommendations made by this c) Principal Secretary Personnel as recommendations for the approval of Chief Minister regarding the difficulties arising in application of this Act or such unforeseen matters which are not included in this Act thereafter the State Government may make rules as required.” “18. Procedure of Posting on Appointment Promotion and other Transfer. In addition to annual general transfer the procedure of posting in appointment promotion and other transfers shall be in following conditions as follows 1) . 2) . 3) . 4) On enquiry on the grounds of serious complaints of misconduct misbehaviour with senior officers and lack of in work etc. after necessary enquiry and confirmation transfer of such employee may be made on administrative grounds: Provided that the transfer on administrative grounds shall not be made casually or on the basis of complaints of routine nature and in the orders of such transfer it shall be necessary to mention Administrative Grounds.” When yesterday the matter was taken up the learned Senior Counsel for the petitioner has argued the writ petition under the pretext that the impugned order of transfer where it makes a reference to Section 27 it does not make a reference to the compliance of sub section of Section 27 which contemplates a ratification approval of the decision which had been taken by the Committee which is provided under sub sectionof Section 27 of the Act. To which the learned Additional Chief Standing Counsel was granted time to complete his instructions and make his statement about the compliance of sub section 2 of Section 27 of the Act. If the provisions contained under Section 27(2) of the Act itself is taken into consideration it provides that where the Committee thus constituted under sub section of Section 27 takes a decision it has had to be compulsorily approved by the Chief Minister under sub sectionof Section 27. The argument of the petitioner is that the reference to Section 27 and the decision taken by the Committee thus provided under sub section of Section 27 itself was not validly constituted and even the decision making process itself is bad in the eyes of law. There are two reasons for not accepting this argument of the learned Senior Counsel for the petitioner. Because at the first instance the challenge to the subsequent recommendation made by a next superior authority i.e. none other than the Chief Minister of the State would have its automatic implication that the decision of the Committee thus constituted was justified and valid because it was thereafter only the ratification by way of an approval has been made by the Chief Minister which is not the subject matter of the challenge in the present writ petition. Thus argument extended by the learned Senior Counsel for the petitioner pertaining to the impugned order not meeting out the spirit and the provisions of Section 27 of the Act is not accepted by this Court. Reverting back to the second limb of his argument of invocation of sub section 4 of Section 18 of the Act he submits that for the purposes of attracting sub section 4 of Section 18 of the Act it refers to an enquiry on the ground of a serious complaint of misconduct. He submits that the enquiry which was said to have been conducted does not reflect a commission of a serious misconduct on the part of the petitioner which could call for transfer and hence the invocation of sub section 4 of Section 18 may not be justified in the circumstances of the present case because the leasing out of the building which was under the title and ownership of the husband of the petitioner for the purposes of E.S.I. Dispensary may not be faulted because it will not amount to be a misconduct. The Court is of the view that the term ‘enquiry’ used under sub section 4 of Section 18 of the Act as per the opinion of this Court will not be treated as to be a substitute to an enquiry contemplated under the Disciplinary and Appeal Rules of 2003 as it has been provided under Section 24 of the Act. The logic behind it is that if a detailed enquiry after recording of its evidence and satisfaction is required to be conducted under sub sectionof Section 18 of the Act then there was no need for the Legislature to independently attract the Disciplinary and Appeal Rules by introducing its applicability by Section 24 of the Transfer Act as referred therein. far as the allegations which are reflected from the transfer order I am of the view that since the petitioner herself was enjoying the office of In charge Medical Officer of E.S.I. Dispensary Jaspur District Udham Singh Nagar her instrumentality in extending the property belonging to her husband for the purposes of being leased out for establishment of the E.S.I. Dispensary will fall to be within the ambit of sub sectionof Section 18 of the Act and consequently the attraction of sub section of Section 18 to be read with Section 27 is not erroneous and legally faulted. The third limb of the argument of the learned Senior Counsel for the petitioner was from the prospective that the provisions of Section 18 and Section 27 contemplate a decision making process by a Committee and the Transfer Committee the reference of which could be borrowed is from Section 16 to be read with Section 17 of the Act itself and the distinction which is being sought to be argued by the learned Senior Counsel is that if Section 17 is harmoniously read with Section 18 of the Act the decision ought to have been taken by the Special Transfer Committee which is not contemplated under Section 27 of the Act. There is yet another justification for not accepting this argument of the learned Senior Counsel for the reason being that the constitution of a Committee under Section 16 for the purposes of considering the Annual General Transfer there happens to be a marked distinction to the Committee which is contemplated under sub section 1) of Section 27 and the Legislature has that is why the constitution of different distinct Committees under Section 17 and Section 27 of the Act to meet out altogether a different purpose of a specific set of allegations falling under Section 18 sub section 4 for which the Committee to exercise the power is provided under Section 27 and for the purposes of regular transfer its the Committee contemplated under Section 16 to be read with Section 17. Hence this distinction with regards to the defect pointed out by the learned Senior Counsel for the petitioner with regards to the constitution of the Transfer Committee is also not acceptable by this Court. For the aforesaid reasons and coupled with the fact that the information supplied by the learned Additional Chief Standing Counsel for the State today that the approval of the decision of the Committee taking a decision under sub sectionof Section 27 has been granted by the Chief Minister I do not find any apparent error in the order of transfer. 7 Consequently the writ petition lacks merit and the same is accordingly dismissed. SHARAD KUMAR SHARMA J.) Vacation Judge Arpan |
A legal duty emanates from either in discharge of a public duty or by operation of law: High Court of Patna | 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 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 and the same was upheld by High Court of Patna through the learned bench led by JUSTICE S. KUMAR in the case of Sima Yadav vs. The State of Bihar [Case No.3506 of 2022] on 11.03.2022. The facts of the case are that the Respondents were recovering irrigation tax from the farmers without supply of water in canal. Therefore, petitioner seeks issuance of direction including writ in the nature of MANDAMUS upon the respondent authorities to rennovate the village canal which was made for the purposes of irrigation and after rennovation of the canal to start the water supply in which water was not supplied from last twenty years. The respondent authorities should be stopped for the recovery of irrigation tax from the farmers which they were recovering without supply of water. The petitioner’s counsel stated that petitioner shall be content if a direction is issued to the authority concerned i.e. respondent Executive Engineer, Saran Canal Commissionary, Gopalganj, for redressal of the grievances. The respondent’s counsel stated 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 four months from the date of its filing. The Court held that the petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievances and the authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months. The Court observed that “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 or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.” | IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.35022 Sima Yadav W o Sri Amarjit Yadav resident of village Rampur Bhaisahi P.S. Kuchaikote District Gopalganj The State of Bihar through the Principal Secretary Water Resource Department Government of Bihar Patna ... Petitioner s The Engineer in Chief Water Resource Department Bihar Patna The Chief Engineer Water Resource Department Siwan The District Magistrate Gopalganj The Executive Engineer Saran Canal Commissionary Gopalganj The Block Development Officer Kuchaikote Gopalganj ... Respondent s Mr. Sanjay Kumar Advocate Mr. Anjani Kumar AAG 4 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through residential Video Conferencing offices residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences offices.) from Date : 11 03 2022 Heard learned counsel for the parties. Petitioner has prayed for the following relief(s): “1(i) Issuance of a direction order or writ including writ in the nature of MANDAMUS upon the respondent authorities to rennovate the village canal Patna High Court CWJC No.35022 dt.11 03 2022 which was made for the purposes of irrigation ii) Issuance of a direction order or writ upon the Respondents to after rennovation of the canal start the water supply in which water was not supplied from last twenty years iii) Issuance of a direction order or writ upon the Respondents to stop the recovery of irrigation tax from the farmers which recovers without supply of water in canal iv) Any other relief reliefs that the petitioner may be found to be entitled to in the facts and circumstances of the present case.” After the matter was heard for some time finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned i.e. respondent no. 5 Executive Engineer Saran Canal Commissionary Gopalganj 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 four months from the date of its filing along Patna High Court CWJC No.35022 dt.11 03 2022 with a copy of this order Statement accepted and taken on record 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. SCC 504] to this effect as follows:3 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 they should be litigants and 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. Vohra2 SCC 150: 2004 SCC363] that:directing performance of a public legal Patna High Court CWJC No.35022 dt.11 03 2022 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 The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been 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 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 Patna High Court CWJC No.35022 dt.11 03 2022 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 As such petition stands disposed of on 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 four months from the date of its filing along with a copy of this order c) The order assigning reasons shall be communicated Patna High Court CWJC No.35022 dt.11 03 2022 to the petitioner d) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties e) Also opportunity to place on record all relevant materials documents shall be granted to the parties f) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law g) 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 h) Liberty reserved to the petitioner to approach the appropriate forum Court should the need so arise subsequently on the same and subsequent cause of action i) We have not expressed any opinion on merits. All issues are left open j) 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.35022 dt.11 03 2022 The petition stands disposed of in the aforesaid terms Interlocutory Application(s) if any stands disposed of (S. Kumar J |
Bar in appointing arbitrator who is in relationship with the parties or with the counsel or with the subject matter of the dispute: High Court of Uttarakhand. | Section 12(5) of the Arbitration and Conciliation Act, 1996 creates a bar with regard to the appointment of an Arbitrator who is in relationship with the parties or with the counselor with the subject matter of the dispute. However, the proviso contains an exception which states that, after disputes have arisen between the parties, if both the parties agree by ‘an express agreement in writing’, only then the bar contained in Section 12(5) of the Act can be waived by the parties. A single Judge bench comprising Hon’ble chief Justice Sri Raghvendra Singh Chauhan, in the matter of Virendra Singh Rawat Vs. Cantonment Board, Dehradun (ARBITRATION APPLICATION NO. 19 OF 2020), dealt with an issue where the petitioner filed the present Arbitration Application under Section 11(6) the Arbitration and Conciliation Act, 1996 (‘’the Act’ for short), for appointment of the sole Arbitrator. In the present case, according to counsel of the applicant, the applicant was the contractor who undertakes government contracts for supplying material/goods in relation to contracts entered with the Government and the Semi-Government Organization. The respondent had invited tenders for “repair and maintenance of roads” in the year 2016. Consequently, the applicant had submitted his rates for the work, and his tender was accepted by the respondent. It was agreed on the work contract that the respondent will make payments within the stipulated time agreed upon. Moreover, the respondent was under the duty to clear all the bills of the applicant within 18 days after which the amounts had become due. The applicant submitted that all the work were duly completed within the time but the payment was not received by the applicant and the respondent owed Rs 1,06,75,158.61/-. Further, the applicant sent a legal notice to the respondent informing them to pay the dues and also appoint the sole Arbitrator, ‘the Garrison Engineer’, as was agreed by both the parties in their agreement. The counsel further submitted that the respondent remained silent with regard to the appointment of the sole Arbitrator and, merely directed the applicant to submit further documents including photographs of the construction work carried out by the applicant. Thereby the applicant approached the court with the present petition. The counsel for the respondent submitted that since the request to appoint ‘the Garrison Engineer’ as the sole Arbitrator was made by the applicant, the applicant has waived the bar contained in Section 12(5) of the Act. Therefore, the applicant is not entitled to pray to this Court for the appointment of the sole Arbitrator. The counsel also submitted before the court that only ‘the Garrison Engineer’ can be appointed as the sole Arbitrator. The counsel for the applicant submitted that the court can appoint a sole arbitrator as, the period for appointment ‘the Garrison Engineer’ as the sole Arbitration was clearly stated ‘within thirty days’ in the legal notice. Further, the counsel submitted that if there was any waiver of the bar contained in Section 12(5) of the Act, the waiver extended only for a period of thirty days and not beyond. The counsel also pointed out that silence on the part of the respondent made it clear that they rejected the request of the applicant for appointing ‘the Garrison Engineer’ as the sole Arbitrator. Hence the applicant had no option but to approach this Court under Section 11(6) of the Act for appointment of the sole Arbitrator. The court observed- “Even after the filing of the present application, the respondent sat quietly over the request of the applicant for appointing ‘the Garrison Engineer’ as the sole Arbitrator till 15.10.2020. Therefore, the learned counsel for the respondent is not justified in claiming that the respondent is legally justified in appointing ‘the Garrison Engineer’ as the sole Arbitrator in accordance with the arbitral clause.” Therefore, the court appointed the sole arbitrator and disposed of the arbitration application accordingly. Click Here For The Judgement | IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN ARBITRATION APPLICATION NO. 19 OF 2020 06TH AUGUST 2021 Virendra Singh Rawat And Cantonment Board Dehradun Counsel for the applicant Mr. Mahanand Joshi and Mr. Kanti Ram. Counsel for the respondent Mr. B.S. Adhikari. The Court made the following: The present Arbitration Application has been filed under Section 11(6) the Arbitration and Conciliation Act 1996 ‘’the Act’ for short) for appointment of the sole Arbitrator. According to the learned counsel for the applicant the applicant is the contractor who undertakes government contracts for supplying material goods in relation to contracts entered with the Government and the Semi Government The respondent the Cantonment Board had invited tenders for “repair and maintenance of roads” in the year 2016. Consequently the applicant had submitted his the work on 15.11.2016. By order dated 30.03.2017 the said tender was accepted by the respondent. Therefore the work order contract was issued on 06.04.2017. According to the work order contract it was agreed that the respondent shall make payments within the time stipulated under the agreement. Moreover the respondent was under the duty to clear all the bills of the applicant within 18 days’ after which the amounts had become due. According to the applicant despite the fact that the work order was completed with utmost satisfaction no payments were received by the applicant in relation to the for work orders which are as under: S. No. Work Order Repairs of cement e56 70 300 Amount of Bill in INR) 58 96 982.28 Date of leading from back side Janta Hotel to Veterinary Dr. June 2017) near Jubli Qtrs. To Road Dehradun to House No.80 Cantt. PGL 5th March 2018) leading from Jubli to 5 Vikas R.P. Post Repairs of cement 8 78 6008 9 52 523.86 Repairs of Jeep 19 98 500 21 56 875.88 Repairs of Road 12 03 000 13 49 326.51 5. Estimate for 4 50 500 3 19 450.08 January 2019) chequered tile at Jadu Ghar Total Amounts of Works 1 02 00 900 1 06 75 158.61 Therefore according to the learned counsel for the applicant the respondent owes Rs.1 06 75 158.61 along with the GST. Since the respondent was not heeding to the request of the applicant on 17.06.2020 the applicant sent a legal notice requesting the respondent to both clear the outstanding bills and since disputes had arisen between the parties to appoint the sole Arbitrator ‘the Garrison Engineer’. According to Clause 19 of the Agreement the parties had agreed that in case disputes were to arise ‘the Garrison Engineer’ shall be appointed as the sole Arbitrator. In the letter dated 17.06.2020 the applicant had clearly stated that the Garrison Engineer shall be appointed within a period of thirty days from the date of the letter. 10. According to the learned counsel for the applicant letter dated 17.06.2020 was replied by the respondent on 14.08.2020. However in the letter dated 14.08.2020 the respondent maintained a study silence with regard to the appointment of the sole Arbitrator. In the letter dated 14.08.2020 the respondent merely directed the applicant to submit further documents including photographs of the construction work carried out by the applicant. There was no whisper about the appointment of an Arbitrator. 11. Since even after making a request for appointment of an Arbitrator and due to laxity on the part of the respondent in appointing the Arbitrator left with no other option the applicant filed the present Arbitration Application under Section 11(6) of the Act. 12. The respondent has filed its counter affidavit. According to Mr. B.S. Adhikari the learned counsel for the respondent on 15.10.2020 the respondent has appointed ‘the Garrison Engineer’ as the sole Arbitrator. The learned counsel for the respondent submits that although it is true that Section 12(5) of the Act does contain a bar which prevents the appointment of any person whose relationship is with the parties or the counsel or the subject matter of the dispute. However the proviso to said sub section clearly provides that the parties may subsequent to disputes having arisen between them waive the applicability of the sub section by an express agreement in writing. 13. According to Mr. B.S. Adhikari the learned counsel for the respondent since the request to appoint ‘the Garrison Engineer’ as the sole Arbitrator was made by the applicant by letter dated 17.06.2020 the applicant has waived the bar contained in Section 12(5) of the Act. Therefore the applicant is not entitled to pray to this Court for appointment of the sole Arbitrator. Hence according to the learned counsel for the respondent only ‘the Garrison Engineer’ can be appointed as the sole Arbitrator. 14. On the other hand Mr. Mahanand Joshi the learned counsel for the applicant submits that in the letter dated 17.06.2020 the period for appointment ‘the Garrison Engineer’ as the sole Arbitration was clearly stated ‘within thirty days’. Therefore if there is any waiver of the bar contained in Section 12(5) of the Act the waiver extends only for a period of thirty days and not beyond. Secondly despite the option of the waiver made by the applicant for a period of thirty days the respondent did not accept the request in fact made mentioned hereinabove. Even in its reply dated 14.08.2020 there was not a single word about the appointment of an Arbitrator. Thus there silence is a clear indication that it has rejected the request of the applicant for appointing ‘the Garrison Engineer’ as the sole Arbitrator. Thirdly since the respondent maintained a study silence and did not appoint the Arbitrator as requested within a period of thirty days the applicant had no option but to approach this Court under Section 11(6) of the Act for appointment of the sole Arbitrator. Therefore according to the learned counsel for the applicant once this Court is seized of the matter under Section 11(6) of the Act it is only this Court which has the power to appoint the sole Arbitrator. Hence according to the learned counsel for the applicant the contentions raised by Mr. B.S. Adhikari the learned counsel for the respondent is highly misplaced. perused the record. 15. Heard the learned counsel for the parties and 16. Section 12(5) of the Act is as under: “12(5). Notwithstanding any prior agreement to the contrary any person whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may subsequent to disputes having arisen between them waive the applicability of this sub section by an express agreement in writing”. 17. A bare perusal of the proviso clear reveals that it creates a bar with regard to the appointment of an Arbitrator who is in relationship with the parties or with the counsel or with the subject matter of the dispute. However the proviso contained an exception. The exception is that after disputes have arisen between the parties both the parties agreed by ‘an express agreement in writing’ only then can the bar contained in Section 12(5) of the Act be said to be the waiver by the parties. 18. Admittedly in the letter dated 17.06.2020 the applicant had requested for appointing ‘the Garrison Engineer’ as the sole Arbitrator. However the request had to be acted upon within a period of thirty days. Undoubtedly the respondent did not act on the said request within a period of thirty days. Moreover in the present case there has been no ‘express agreement in writing’ with regard to the waiver of the bar contained in Section 12(5) of the Act. Therefore the learned counsel for the respondent is not justified in claiming that by letter dated 17.06.2020 the applicant had waived the bar imposed by Section 12(5) of the Act. Moreover admittedly the applicant had filed the present applicant on 24.09.2020 before this Court. Even after the filing of the present application the respondent sat quietly over the request of the applicant for appointing ‘the Garrison Engineer’ as the sole Arbitrator till 15.10.2020. Therefore the learned counsel for the respondent is not justified in claiming that the respondent is legally justified in appointing ‘the Garrison Engineer’ as the sole Arbitrator in accordance with the arbitral clause. Hence the contention raised by the learned counsel for the respondent is clearly unacceptable. 19. Admittedly the disputes continue to exist between the parties. Obviously the dispute needs to be resolved through the arbitral proceedings. Therefore this Court appoints Mr. B.C. Kandpal Retd. Judge High Court of Uttarakhand R o 117 Rajeshwar Nagar Phase I Sahastradhara Road Dehradun as the sole Arbitrator after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof shall his appointment as an arbitrator come into force. 20. On giving consent to arbitrate the disputes between the parties Mr. B.C. Kandpal Retd. Judge High Court of Uttarakhand R o 117 Rajeshwar Nagar Phase I Sahastradhara Road Dehradun shall enter reference and shall pass an award in accordance with law. The learned arbitrator shall fix his fees in consultation with both the 21. The arbitration application is disposed of Dated: 06th August 2021 RAGHVENDRA SINGH CHAUHAN C.J.) |
No clear penalty and punishment for an advertisement violative of ‘Advertising Code’: Delhi High Court | There are no clear regulations as to the extent of penalty and punishment that can be imposed in case an advertisement is found to be objectionable and violative of the `Advertising Code’. This was observed by the Delhi High Court in the matter of TV TODAY NETWORK LIMITED vs. UNION OF INDIA [W.P.(C) 1971/2021 & CM APPLs. 5764/2021 & 5765/2021]. The judgement was pronounced by Justice Prathibha M. Singh. The respondent alleged that the petitioner ran an advertisement of “All Seasons” Club Soda which was a surrogate advertisement for “All Seasons” Whisky, sold in a similar bottle and layout. The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court shows that in the said live telecast, an ‘L’ shaped advertisement was broadcast on the `Aaj Tak’ TV channel, which, according to the Petitioner, relates to the “All Seasons” Club soda product. The I&B Ministry found the same advertisement objectionable in terms of the provisions of the Cable Television Networks (Regulation) Act, 1995 and issued a show cause notice. After hearing the Petitioner, the I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement is nothing but surrogate advertising and directed the Petitioner to run an apology scroll in bold legible font at the bottom of the screen for two days continuously. However, the court observed, “The fact that the Whisky bottle and the Club Soda bottle used, have the same look and feel/trade dress, this Court is of the opinion that the entire order cannot be interdicted and stayed. The identity between the two product containers and the fact that the Petitioner uses an alternate bottle for its Club Soda, do raise questions relating to `Surrogate advertising’. However, considering that the measure imposed also cannot be disproportionate and keeping in mind that the apology so directed ought not to interfere unreasonably with the normal telecast of the channel, the frequency of the apology and the duration deserves to be curtailed/reduced.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 15th February 2021 W.P.(C) 1971 2021 & CM APPLs. 5764 2021 & 5765 2021 TV TODAY NETWORK LIMITED Through: Mr. Gopal Jain Sr. Advocate with Mr. Shahruk Ejaz Advocate UNION OF INDIA Through: Mr. Chetan Sharma ASG with Ms Monika Arora CGSC & Mr. Shriram Tiwary Mr. Amit Gupta Mr. Vinay Yadav Mr. Akshay Gadeock Mr Sahaj Garg Mr. R. Venkat Advocates with Mr. Girish Chand Aron Director I&B Ministry JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J(Oral This hearing has been done through video conferencing The distinction between club soda and whisky is at the core of the dispute in the present case. For persons who consume the same distinction is quite clear! However in the case of advertisements which are alleged to be surrogate the lines are blurred The allegation of the Respondent the Petitioner ran an advertisement of “All Seasons” Club Soda which was a surrogate advertisement for “All Seasons” Whisky sold in a similar bottle and layout The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court in the said live telecast an ‘L’ shaped advertisement was broadcast on the `Aaj Tak’ TV channel which according to the Petitioner relates to the “All Seasons” Club soda product. The Ministry of Information and Broadcastinghowever found the same objectionable in terms of the provisions of the Cable Television Networks Regulation) Act 1995 and issued a show cause notice on 7th September 2020. Reply to the said notice was also filed by the Petitioner. After hearing the Petitioner the I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser the advertisement is nothing but surrogate advertising and hence the direction to issue an apology was imposed The present petition is accordingly filed challenging the impugned order dated 9th February 2021 by which the I&B Ministry has directed the Petitioner to run an apology scroll in bold legible font at the bottom of the screen for two days continuously with effect from 0001 hours on 16th February 2021 to 0001 hours on 18th February 2021. The operative portion of the order reads of Aaj Tak TV channel WHEREAS the Competent Authority having considered all the facts and circumstances of the recommendations of the IMC the provisions of the Cable Television NetworksAct 1995 and the Rules framed thereunder has come to a conclusion that there was a clear violation of Rule 7(2)(viii)(A) of the Advertising Code NOW THEREFORE having regard to the totality the circumstances as explained above Competent Authority in the Ministry of Information Broadcasting hereby directs Aaj Tak TV channel to run an Apology Scroll in bold legible on 16.02.2021 for two days continuously with effect from 0001 Strict compliance with the above direction will be ensured by Aaj Tak IV channel …” Mr. Gopal Jain ld. Senior Counsel submits that the channel had taken all possible steps and had exercised due diligence by calling for a Chartered Accountant’s certificate in relation to the sales of “All Seasons” Club Soda The channel had also ensured that the product being advertised was club soda and not whisky. Ld. Sr counsel further submits that the soda product of the advertiser is sold both in glass and bottles. The impugned order does not consider this aspect On the other hand Mr. Chetan Sharma ld. ASG along with the ld CGSC duly instructed by Mr. Girish Chandra Aron Director I&B Ministry submits that the objectionable aspect of the advertisement was the colour and layout of the bottle as also the timing of it which was inappropriate leading to the issuance of the show cause notice This Court has considered the video footage which was shown by ld Counsel for the Petitioner as also the notice reply and impugned order The Cable Television Network Rules 1994 stipulate under Rules 6 and 7 the `Programme Code’ and `Advertising Code’. However consequences of violation thereof are not clearly provided for. The matter thus requires consideration At this stage the Court is only looking at what the interim relief if any ought to be granted considering that the apology has to be shown by the Petitioner from tonight from 0001 hours. Admittedly there are no clear regulations as to the extent of penalty and punishment that can be imposed in case an advertisement is found to be objectionable and violative of the The counsel for the Petitioner has during the video conference hearing exhibited the bottle used by the advertiser for Club Soda and Whisky. From a first look at the same they appear very similar. The fact that the Whisky bottle and the Club Soda bottle used have the same look and feel trade dress this Court is of the opinion that the entire order cannot be interdicted and stayed. The identity between the two product containers and the fact that the Petitioner uses an alternate bottle for its Club Soda do raise questions relating to `Surrogate advertising’. However considering that the measure imposed also cannot be disproportionate and keeping in mind that the apology so directed ought not to interfere unreasonably with the normal telecast of the channel the frequency of the apology and the duration deserves to be curtailed reduced 11. Accordingly at this stage the Petitioner is directed to run a 10 second apology every hour between 8:00 a.m. to 8:00 p.m. on two days i.e. 16th February 2021 and 17th February 2021 12. CM APPL. 5764 2021 is disposed of in the above terms. Let the counter affidavit to the writ petition be filed within four weeks. Rejoinder be filed within four weeks thereafter. In the counter affidavit the I&B Ministry shall specifically state if there is any uniform policy followed by it in imposing penalties for violation of the `Programme Code’ or `Advertising List on 5th July 2021 FEBRUARY 15 2021 PRATHIBA M. SINGH J Page |
Violating conditions under Section 438(2) of Cr.P.C shall lead to cancellation bail bonds: Madhya Pradesh High Court | Prima facie, it seems that the arrest of present applicant is not required to the police for investigating purpose but they may arrest him in compliance of arrest warrant issued by the trial Court due to nonpresence of the applicant while filing of charge-sheet. This was said in the case of Amar Kumar Chaudhary Vs The State Of Madhya Pradesh [MCRC-21301-2021] by Justice Vijay Kumar Shukla in the High Court of Madhya Pradesh The facts of the case are that the applicant is apprehending his arrest in connection with Crime, for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC. Learned counsel for the applicant submits that a false case has been registered against the applicant whereas the applicant is not involved in the alleged offences. Intimation regarding filing of charge-sheet has not been given to applicant. The trial Court has issued the arrest warrant at the first instance without giving any opportunity of hearing to the applicant. He has relied upon the judgment passed by the Hon’ble Apex Court in the case of Indar Mohan Goswami & Ors. V. State of U.P. & Ors [(2007)12 SCC 1], submitting that the warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind due to the extremely serious consequences and ramifications which ensure on issuance of warrants but the trial Court has directly issued the arrest warrant against the applicant. Besides the above, learned Senior counsel argued that investigation is complete, charge-sheet has been filed and no purpose would be serve to send the applicant behind the bars. An opportunity of hearing should have been given to the applicant prior to issuance of arrest warrant. There is no criminal antecedent against the present applicant. There is no probability of his absconding or tampering with the evidence of prosecution Per-contra, learned P.L. for respondent/State opposes the bail application submitting that applicant has committed serious crime and he is not entitled to get anticipatory bail. | MCRC 21301 2021 The High Court Of Madhya Pradesh The High Court Of Madhya Pradesh MCRC 21301 2021 AMAR KUMAR CHAUDHARY Vs THE STATE OF MADHYA PRADESH Jabalpur Dated : 10 05 2021 Heard through Video Conferencing Shri Siddharth Kumar Sharma learned counsel for the applicant Smt.Gulab Kali learned Government Advocate On account of prevailing conditions worldwide brought about by the COVID 19 virus the appeal has been heard through video conferencing in order to maintain social distancing. The necessary parties have effectively been represented by their respective counsel via video conferencing The applicant is apprehending his arrest in connection with Crime No.572 2020 registered at Police Station Madhotal District Jabalpur for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC According to case the applicant is accused of Crime No.572 2020 registered at Police Station Madhotal District Jabalpur for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC. As per the prosecution story on the complaint the police official raided in the godown under the ownership of Amar Kumar Chaudhary and found that a truck containing government wheat was unloading by the labourers. During investigation it is found that the present applicant and other co accused persons namely Vijay Kumar Azam Kha Amar Kumar Vijay Singh Lodhi and Gudda Khan have committed cheating by delivering the government wheat to Private Godown in place of Government Fair Price Shop. During investigation the Investigating Officer has not arrested the applicant in view of the compliance of Section 41(1) of Cr.P.C. directing MCRC 21301 2021 him to appear before the Court while filing the charge sheet. Despite giving intimation the applicant did not appear before the JMFC Jabalpur at the time of filing of charge sheet by the prosecution hence the learned JMFC has issued the arrest warrant against the applicant. Learned counsel for the applicant submits that a false case has been registered against the applicant whereas the applicant is not involved in the alleged offences. The wheat has already been obtained by the M.P State Civil Supply Corporation on Supurdginama. Intimation regarding filing of charge sheet has not been given to applicant. The trial Court has issued the arrest warrant at the first instance without giving any opportunity of hearing to the applicant. He has relied upon the judgment passed by the Hon ble Apex Court in the case of Indar Mohan Goswami Ors. V. State of U.P. & Ors. reported in8 SCC 77 passed by the Hon ble Supreme 2. Mayank vs. State of M.P. reported in 2 MPHT 3. Rajendra Kori vs. State of M.P. in M.Cr.C.No.17501 2016 350 passed by this High Court. passed by this High Court. anticipatory bail to the applicant Therefore learned counsel for the applicant prays for grant of Per contra learned P.L. for respondent State opposes the bail application submitting that applicant has committed serious crime and he is not entitled to get anticipatory bail. On perusal of case it appears that the applicant made as an accused in the case being proprietor of private godown where the government wheat was unloading. Charge sheet has been filed in the case and the applicant is apprehending his arrest on the reason of his absence before the trial Court while filing of charge sheet by the police. During investigation the applicant has not been arrested by the police in compliance of Section 41(1) of Cr.P.C. directing the applicant to remain present before the trial Court at the time of filing of charge sheet. As per the prosecution despite giving notice to the applicant he did not appear MCRC 21301 2021 before the trial Court and therefore the trial Court has issued arrest warrant against him. The learned Senior counsel for the applicant confronted the same relying upon the judgement and orders passed by the Hon ble Supreme Court as well as this High Court submitting that at the first instance arrest warrant should have not been issued by the learned trial Court. Summons could be issued against him. Prima facie it seems that the arrest of present applicant is not required to the police for investigating purpose but they may arrest him in compliance of arrest warrant issued by the trial Court due to non presence of the applicant while filing of charge sheet. Considering the aforesaid circumstances and submissions raised by the learned Senior counsel but without expressing any opinion on merits o f the case this Court is of the view that it would be appropriate to enlarge the applicant on anticipatory bail. Consequently the application under Section 438 of Cr.P.C. is hereby allowed is directed that Applicant Amar Kumar Choudhary will surrender himself before the trial Court within thirty days from the date of receipt of certified copy of this order and in the event of arrest he be released on bail on his furnishing bail bond in the sum of Rs.50 000 Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court The applicant shall abide by the conditions enumerated in sub sectionof Section 438 of Cr.P.C Certified copy as per rules VIJAY KUMAR SHUKLA |
Expert evaluation of Tender to be carried out only if wrong alleged on part of Tendering Authority: Supreme Court | “Unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court.”, this remarkable stand was forwarded by Hon’ble Supreme Court, in a three judge bench chaired by Hon’ble Justice Mr Rohinton Fali Nariman, Mr. Navin Sinha & Mr. K.M. Joseph in the Civil appeal case of Galaxy Transport Agencies, Contractors, Traders, Transports & Suppliers V. New J.K. Roadways, Fleet Owners & Transport Contractors & Ors., [SLP (Civil) No. 12766 of 2020]. In this appeal, the Inspector General of Police, Kashmir Zone, Zonal Police HQR’s Kashmir, Srinagar [“ZPHS”], being Respondent No. 4 before us, invited online tenders (e-tenders) vide e-N.I.T. No. 01 of 2020 dated 18.02.2020 [“N.I.T.”] from reputed transporters, registered firms/associations for the supply of various types of commercial vehicles (without fuel) for the carriage of troops and equipment for the Financial Year 2020-2021. Pursuant to the N.I.T., 4 parties, namely, M/s Associated Contractors; M/s Quareshi Transport Co.; M/s Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers [“Appellant”]; and M/s New J.K. Roadways, Fleet Owners and Transport Contractors [“JK Roadways”] submitted their bids for consideration and the same were uploaded through an e-tendering system. The tender process consisted of a technical bid and a financial bid. The Tender Opening Committee met on 11.03.2020 and found that JK Roadways, Respondent No. 1 herein, and Associated Contractors did not meet the qualifying requirements of the technical bid, leaving Quareshi Transport Co. and the Appellant, who were considered technically eligible for the allotment of the contract. The Appellant’s financial bid being the lowest, vide an order dated 30.03.2020, the Appellant was allotted the contract for the supply of commercial vehicles for the Financial Year 2020-2021. A writ petition was filed by JK Roadways seeking the quashing of the allotment of the contract in favour of the Appellant. JK Roadways filed a letters patent appeal before the Division Bench of the High Court of Jammu and Kashmir at Srinagar [“Division Bench”]. By the impugned judgment dated 16.10.2020. Resultantly, the judgment of the Single Judge dated 30.06.2020 was set aside and the contract awarded in favour of the Appellant was quashed. The official respondents were directed to invite fresh tenders and complete the process within a period of 1 month from the date of the order of the Division Bench. As a result of this Court’s order, the Appellant has continued executing the awarded work till date, with roughly 3 months left for the completion of the contract period. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the Appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own… we do not think that the scope of this appeal be enlarged to include any such point which appears to have been given up before the Division Bench.” The bench further added that, “Also, the argument that the Appellant has submitted work experience certificates in the name of “Galaxy Agencies”, which is a separate entity from “Galaxy Transport Agency”, has not been argued either before the Single Judge or before the Division Bench. In this circumstance, we reject this point also.” | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._____________ OF 2020 SPECIAL LEAVE PETITIONNO. 12766 OF 2020) M S GALAXY TRANSPORT AGENCIES CONTRACTORS TRADERS TRANSPORTS AND SUPPLIERS M S NEW J.K. ROADWAYS FLEET OWNERS AND TRANSPORT CONTRACTORS & ORS. JUDGMENT R.F. Nariman J 1. Leave granted. In this appeal the Inspector General of Police Kashmir Zone Zonal Police HQR’s Kashmir Srinagarbeing Respondent No. 4 before us invited online tendersvide e N.I.T. No. 020 dated 18.02.2020 from reputed transporters registered firms associations for the supply of various types of commercial vehicles for the carriage of troops and equipment for the Financial Year 2020 2021. Pursuant to the N.I.T. 4 parties namely M s Associated Contractors M s Quareshi Transport Co. M s Galaxy Transport Agencies Contractors Traders Transports and Suppliers and M s New J.K Roadways Fleet Owners and Transport Contractors submitted their bids for consideration and the same were uploaded through an e tendering system. The tender process consisted of a technical bid and a financial bid. The Tender Opening Committee met on 11.03.2020 and found that JK Roadways Respondent No. 1 herein and Associated Contractors did not meet the qualifying requirements of the technical bid leaving Quareshi Transport Co. and the Appellant who were considered technically eligible for the allotment of the contract. The Appellant’s financial bid being the lowest vide an order dated 30.03.2020 the Appellant was allotted the contract for the supply of commercial vehicles for the Financial Year 2020 2021. 3. A writ petition was filed by JK Roadways seeking the quashing of the allotment of the contract in favour of the Appellant. Before the learned Single Judge of the High Court of Jammu and Kashmir at 2 Srinagar three contentions qua the Appellant’s technical eligibility were made by JK Roadways which were decided in the following manner by a judgment dated 30.06.2020: 3a.Firstly the learned Single Judge found that though the service licence of the Appellant was only valid upto 31.03.2020 it had sought an extension of its service licence prior to its expiry. Since a lockdown was imposed on account of the outbreak of COVID 19 a General Order dated 30.03.2020 was issued through which the validity of all documents relating to transportation services were deemed to be extended till 30.06.2020. This being the case this contention was decided against JK Roadways and it was held that the Appellant fulfilled the eligibility condition of holding a valid service licence Secondly it was found that the Appellant did in fact own 30 vehicles including heavy motor vehiclesand light motor vehiclesas a list of 36 vehicles was furnished to ZPHS the tendering authority. Since a complaint in this regard had been made by the unsuccessful bidders the same was forwarded to the Senior Superintendent of Police Srinagar “SSP”] to ascertain the veracity of the documents furnished. The SSP submitted a report finding that though 5 vehicles were found 3 to be owned by individuals other than the Appellant 31 vehicles were still owned by the Appellant as a result of which the eligibility condition was satisfied. It was also found that insofar as 1 vehicle was concerned it was indeed owned by the Appellant as there existed a typographical error in the registration number of the vehicle. 3c.Thirdly as far as the eligibility criteria of having work experience of at least 5 years not being less than Rs. 2 crores was concerned the learned Single Judge found that work experience certificates from 2014 to 2018 were submitted and since the tendering authority was the best judge as to whether such eligibility condition had in fact been satisfied a judicial hands off Finally the learned Single Judge concluded “16. Considering the submissions of the parties and in view of the law laid down by the Supreme Court and also the fact that the contract is for the year 2020 21 which has already commenced w.e.f. 1st April 2020 public interest would be severely jeopardized if the respondents are not allowed to execute the contract because the bid of respondent No. 5 was the lowest. It is therefore in public interest not to interfere in the allotment of contract in favour of respondent No. 5 who satisfied the criteria as laid down in technical bid as he had furnished list of HMV & LMV vehicles which was the most essential condition of the tender. Thus the petitioner having been found ineligible cannot now 4 question allotment of contract to respondent No. 5 because the petitioner is not similarly situated.” 4. JK Roadways filed a letters patent appeal before the Division Bench of the High Court of Jammu and Kashmir at Srinagar Though the appellant has raised a number of grounds in the appeal yet during the course of arguments the main thrust of arguments advanced by the learned counsel for the appellant was on the following grounds: I) That the official respondents were not justified in rejecting bid of the appellant on the ground that it had submitted only the list of heavy motor vehicles and that the list did not contain the particulars of light motor vehicles II) That the respondent No.5 despite lacking the requisite experience in supply of vehicles was awarded the contract which action has amounted to award of contract in favour of an ineligible bidder to the exclusion of an eligible bidder.” 5. After setting out Condition No. 31 of the N.I.T. the Division Bench “16) From a perusal of the aforesaid condition it is clear that the official respondents while formulating the tender notice have used the expression “HMV LMV” meaning thereby that a tenderer had the option of furnishing the particulars of either HMVs or LMVs or both types of vehicles. No other construction can be given to the expression “HMV LMV”. If the official respondents 5 desired that a tenderer must own both types of vehicles i.e. HMVs as well as LMVs they could have easily used the word “and” instead of “ ” in between HMV and LMV in the tender notice use whereof refers to “or”. This is not the case over here. Thus if the appellant has furnished the list of Heavy Motor Vehicles only he has done what a reasonable and prudent person would do upon going through the tender condition quoted hereinabove. The action of the official respondents of rejection of technical bid of the appellant on the ground of non furnishing of list of both types of vehicle is therefore irrational arbitrary and perverse. Therefore the contention of the appellant in this regard is full of substance and deserves to be 17) Mr. B. A. Dar Sr. AAG has submitted that the tender notice condition stated “both HMV LMV” which meant that the tenderers had to provide details of both HMV and LMV vehicles. Per contra learned Sr. counsel for the appellant has contended that the very appellant was found eligible in respect of the same condition and was awarded the same work for the previous five years which was satisfactorily completed. 18) We are unable to agree with the submission of Sr AAG. As already noted if the respondents required provision of details of both HMV and LMV vehicles they would have placed “and” between them. This has not 6. As a result the Division Bench found that JK Roadways having satisfied Condition No. 31 of the N.I.T. was wrongly disqualified by the tendering authority. So far as the requirement under Condition No. 27 of the N.I.T. of holding work experience of at least 5 years was concerned the Division Bench found that the Appellant had experience of supplying vehicles only for a few months in the years 6 2014 and 2015 and therefore the Appellant could at best be said to hold work experience of supplying vehicles for 1 year only. Thus Condition No. 27 of the N.I.T. being an essential condition remained unfulfilled by the Appellant. Resultantly the judgment of the Single Judge dated 30.06.2020 was set aside and the contract awarded in favour of the Appellant was quashed. The official respondents were directed to invite fresh tenders and complete the process within a period of 1 month from the date of the order of the 7. On 04.11.2020 this Court issued the following order Division Bench. “Issue notice. There shall be an ad interim stay of operation of the impugned judgment and order of the High Court. Counter affidavit within one week by Respondent No.1 Likewise counter affidavit to be filed by the State within two weeks. Rejoinder affidavit within one week 8. As a result of this Court’s order the Appellant has continued executing the awarded work till date with roughly 3 months left for the completion of the contract period 9. Shri Rana Mukherjee learned senior advocate appearing on behalf of the Appellant argued that the Division Bench was wrong on both 7 counts. According to him a plain reading of Condition No. 31 of the N.I.T. showed that “both HMV LMV” had to be supplied and as JK Roadways only supplied a list of HMVs it was obviously ineligible Further he placed reliance upon the judgments of this Court stating that the authority that floats the tender is the best judge on how a tender condition should be read. Accordingly the Division Bench overstepped its mark in construing the eligibility conditions of the N.I.T. contrary to the tendering authority’s interpretation. Insofar as the work experience condition was concerned he adverted to the work experience certificates from the Financial Years 2014 2015 to 2018 2019 which showed that the Appellant possessed the necessary work experience which had also been demonstrated to the Tender Opening Committee which had in turn reflected the same in a tender scrutiny report showing that it had applied its mind in rendering the Appellant a technically qualified bidder. With respect to the service licence Shri Mukherjee relied upon the conclusions of the Single Judge and stated that since this contention was given up before the Division Bench this Court ought not to allow this point to be re agitated. 10. Shri Altaf H. Naik learned senior advocate appearing on behalf of JK Roadways reiterated the three submissions made before the 8 Single Judge and also sought to argue that the work experience certificates supplied by the Appellant were in the name of “Galaxy Agencies” and therefore could not be counted to the credit of the Appellant. He vehemently argued that the Appellant did not possess a service licence for the relevant period the licence having expired on 31.03.2020 and not having been renewed by the General Order when properly read. Thus the eligibility conditions were not satisfied by the Appellant. Equally the Division Bench was right in saying that insofar as the work experience requirement was concerned the Appellant had only 1 year of experience which would not meet the essential requirement of the N.I.T. Finally he also advanced submissions on JK Roadways being qualified on a reading of Condition No. 27 of the N.I.T. 11. Smt. Shashi Juneja additional standing counsel appearing on behalf of the Union Territory of Jammu & Kashmir supported the grant of the contract in favour of the Appellant and said that the Division Bench was incorrect in its construction of Condition No. 27 of the N.I.T. She also submitted that the Tender Opening Committee being an expert body and having scrutinised the documents supplied by the Appellant cannot now be second guessed by the judgment of the High Court. 9 12. Having heard the learned counsel for the parties it is first necessary to set out the N.I.T.’s “Terms and Conditions Qualifying Criteria” Condition Nos. 27 and 31 of the N.I.T. which are material to this case state as follows “Terms and Conditions Qualifying Criteria 27. The firm association shall have working experience of at least Five years with documentary proof and work should notless2 Crores xxx xxx xxx xxx xxx xxx 31. The firm tenderer should have owned at least 30 nos of vehicles both HMV LMV and attached 200 vehicles with the firm alongwith documentary proof.” 13. Even a cursory glance at Condition No. 31 of the N.I.T. would show that the 30 vehicles referred to are “both HMV LMV”. The tendering authority has construed this condition to mean that both types of vehicles i.e. HMV and LMV need to be included in the list of the 30 vehicles submitted by each bidder. 14. In a series of judgments this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements and thus its interpretation should not be second guessed by a court in judicial review proceedings. In 10 Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. 2016SCC 818 this Court held: “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 given.” 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 interpreting statutes. 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 11 failure. BCCL having authored these documents is better placed to appreciate their requirements and interpret them. 16 SCC 818 at para 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 illegality.” 16. Further in the recent judgment in Silppi Constructions Contractors v. Union of India 2019 SCC OnLine SC 1133 this Court held as follows “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 contract involving 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 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.” 12 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 18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned suffice it to say that the expert body being the Tender Opening Committee consisting of four members clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged the expert evaluation of a particular tender particularly when it comes to technical evaluation is not to be second guessed by a writ court. Thus in Jagdish Mandal v. State of Orissa Whether the process adopted or decision made by the authority is mala fide or intended to favour 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” 14 Whether public interest is affected If the answers are in the negative there should be no interference under Article 226. Cases involving 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.” pages 531 532 19. Similarly in Montecarlo Ltd. v. NTPC Ltd. 2016SCC 272 this Court stated as follows “26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third party assistance from those unconnected with the owner s organisation is taken. This ensures objectivity Bidder s expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi prong complex approach highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise Parameters applied are different. Its aim is to achieve 15 high degree of perfection in execution and adherence to the time schedule. But that does not mean these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated the court should follow the principle of restraint Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the 20. This being the case we are unable to fathom how the Division Bench on its own appraisal arrived at the conclusion that the Appellant held work experience of only 1 year substituting the appraisal of the expert four member Tender Opening Committee with its own. 21. As was correctly pointed out by Shri Mukherjee learned senior counsel appearing on behalf of the Appellant the contention as to the invalidity of the Appellant’s service licence for the requisite period does not appear to have been argued before the Division Bench though argued before and rejected by the learned Single 16 Judge. This being the case we do not think that the scope of this appeal be enlarged to include any such point which appears to have been given up before the Division Bench. 22. Also the argument that the Appellant has submitted work experience certificates in the name of “Galaxy Agencies” which is a separate entity from “Galaxy Transport Agency” has not been argued either before the Single Judge or before the Division Bench In this circumstance we reject this point also 23. The Division Bench’s judgment dated 16.10.2020 is therefore set aside and the learned Single Judge’s judgment dated 30.06.2020 is restored. The appeal is disposed of in the aforesaid terms. ROHINTON FALI NARIMAN 17 New Delhi December 18 2020 18 |
Whether a priority industry eligible to avail sale tax benefits and exemptions contemplated under IPR-1996: Odisha High Court | If the industry complies with all the requirements of the applicable notifications, then there is no justification for denying the sale tax exemptions. A single bench comprising of Chief Justice B.P. Routray adjudicating the matter in Protection Manufacturers Pvt. Ltd. v. State of Odisha & Ors (WRIT PETITION (CIVIL) No.5491 of 2009) dealt with the issue of whether the Petitions is a priority industry and is entitled to claim sales tax incentives under Clause 5.6 (Part-II) of IPR 1996. The Petitioner was a Small Scale Industry(SSI) and was set up for manufacturing air coolers. It started its commercial production on 10th April 1994 and had availed the benefit of IPR1989 which was withdrawn from 1st July 1999. The petitioner expanded its business by undertaking diversification programs under IPR 1996 and manufactured emergency lights, molded furniture, TV sets (both black and white and color) apart from the existing products being manufactured by it. It accordingly invested Rs.4,08,35,710/- and communicated this fact of diversification/modernization to the DIC, Bhubaneswar stating that it had in the process qualified as a Medium Scale Industry (MSI). The DIC, Bhubaneswar by its letter dated 29th December 2001, recommended to the DoI that the Petitioner’s unit should be issued a Priority Industries Certificate (PIC) indicating the project cost. The DoI issued a production certificate on 8th Jan 2002 and stated that the unit had come under the purview of “Large and Medium sector” and its date of commercial production is determined as 12th November 2001 and on 24th Jan 2002the DoI certified the Petitioner’s unit to be a priority industry as defined in Para-2.7 (i) and (xii) Part-II of the IPR 1996. In the said certificate it was noted that the unit was “eligible to avail sales tax exemption/deferment as applicable under IPR 1996. The DoI issued, a certificate of eligibility for sales tax concession “on sale of finished products on 7th March 2002 which was valid from 12th November 2001 to 11th November, 2006. The Petitioner contended that based on the Eligibility Certificate issued to it in terms of Clause 5.6 (ii) and Clause 5.7 of IPR 1996, it was to be given the benefit of sales tax concession not only for five years but for two additional years which was denied by the Opposite Party. The Petitioner asserted that the denial is unjustified as it is contrary to the notification dated on 2nd February 1999, issued by the State Government, which clarified that all priority industries would be entitled to an additional two years of sales tax exemption. Also, the Petitioner referred to a Notification No. SRO 141/2000 which was issued by the Finance Department of Govt. of Odisha on 17th February 2000 which stated that the existing industrial units already in receipt of incentives under an earlier notification dated 23rd April 1976, as amended from time to time “immediately before the 1 st January 2000” would continue to avail incentives for the period of their eligibility under the notification. This notification further stipulated that where an industrial unit was “in the pipeline‟ as on 1st January 2000, it would be entitled to the incentive under the notification on same terms and conditions if it fulfilled the following criteria as on 1st January 2000: “ The Petitioner submitted that it fulfills all the conditions of the above criteria spelled under SRO 141/2000 and also The name of the Petitioner’s unit was at Serial No. 24 of the said list. Further, it was pointed out by the Petitioner that in the exercise of powers conferred on it under Section 6 of the Orissa Sales Tax Act (the OST Act), the Government of Orissa had brought out an amendment to Notification No. 206 dated 23rd April 1996 stipulating that for priority industries, the period of exemption from payment of sales tax shall be extended by two additional years and that “there shall be no maximum limit on such exemption during the eligibility period. Based on the above-stated contention, the Petitioner asserted that he was eligible to extend the sales tax benefit to the Petitioner for an additional two years. After various prolonged attempts and court proceedings, the petitioner in the present case pointed out that there were 2 notifications of 17th February 2000 i.e. SRO 141/2000, which applied to existing units that had expanded, and SRO 140 /2000, which applied to new units. Also, he pointed out how he had graduated to a Medium Scale Industry and was an industry in the pipeline it was covered under SRO 141/2000. It was further pointed out that the tax exemption certificate dated 11th March 2002 was issued in terms of a Finance Department’s notification No. SRO 475 dated 20th July 1996, which W.P.(C) No.5491 of 2009 Page 9 of 12 became effective on 1st February 1996. After looking into the submissions of both the parties, the court concluded that “a factual misconception on the part of the DoI about the status of the Petitioner, which admittedly graduated from an SSI unit to a Medium Scale unit having undertaken the expansion and modernization drive. There also appears to be a misconception as regards the eligibility of the Petitioner for sales tax exemption for an additional two years since it is recognized as a “priority industry.” Adding to it the court said that “The Petitioner is right in its contention that the Opposite Parties are mistaken in their stand that IPR 1996 was meant only for a New/SSI/Medium/Large industry. The notification issued by the Opposite Parties themselves belies this contention.” | IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.54909 An Application under Articles 226 & 227 of the Constitution of India) M s. Protection Manufacturers Pvt. Ltd. Petitioner versus State of Orissa and others Opposite Parties Advocates appeared in the case by Video Conferencing mode: For Petitioner Mr. S. P. Misra Senior Advocate along with Miss. S. Mishra Mr. B. Mohanty Mr. B. S. Panigrahi and Mr. S. K. Sahoo versus For Opposite Parties Mr. P. K. Muduli Additional Government Advocate for the State THE CHIEF JUSTICE JUSTICE B. P. ROUTRAY 31st May 2021 Dr. S. Muralidhar CJ. 1. The Petitioner challenges the decision dated 18th January 2008 of the Director of Industries Orissa (Opposite Party No.2) holding that the Petitioner is not a new unit under the Industrial Policy Resolution 1996not entitled to priority industry W.P.(C) No.54909 status and is also not entitled to claim sales tax incentives under Clause 5.6 of IPR 1996 thereby upholding cancellation of the Sales Tax Eligibility Certificate issued in favour of the Petitioner on 15th October 2005. 2. The background facts are that the Petitioner was initially a Small Scale Industry having been registered as such on 21st December 1996 with the District Industries Center Bhubaneswar DIC)apart from the existing products being manufactured by it. It accordingly invested Rs.4 08 35 710 and communicated this fact of diversification modernization to the DIC Bhubaneswar stating that it had in the process qualified as a Medium Scale Industryindicating the project cost in the aforementioned sum after due verification. 4. At this stage it requires to be noticed that Clause 2.7 of IPR 1996 defines „priority industry‟ to mean an industrial unit in certain W.P.(C) No.54909 specified categories having a project cost of not less than Rupees 1 5. By communication dated 8th January 2002 the DoI issued a production certificate in favour of the Petitioner stating inter alia that after the expansion and modernization drive the unit had come under the purview of "Large and Medium sector" and its date of commercial production is determined as 12th November 2001. By another communication dated 24th January 2002 the DoI certified the Petitioner s unit to be a priority industry as defined in Para 2.7 i) and Part II of the IPR 1996. In the said certificate it was the unit was to avail exemption deferment as applicable under IPR 1996 subject to fulfillment of all other conditions as laid down if any." 6. On 7th March 2002 the DoI further issued in favour of the Petitioner under Form II A a certificate of eligibility for sales tax concession "on sale of finished products." Para 5 of the said certificate noted the annual installed capacity of production in respect of various products as under: Particulars of finished products Installed capacity of E M Dcapacity of T. V. SetsT. V. Sets4. Moulded furniture household particular 15000 pcs. P.A. 18000 pcs. P.A. 6000 pcs. P.A. W.P.(C) No.54909 cabinet of assorted 5. Air Cooler 8000 pcs. 2400 pcs. P.A. existing unit)" 7. The aforementioned certificate was valid from 12th November 2001 to 11th November 2006. 8. The Petitioner contended that on the basis of the Eligibility Certificate issued to it in terms of Clause 5.6and Clause 5.7 of IPR 1996 it was to be given the benefit of sales tax concession not only for five years but for two additional years. However the Joint Director of Industries Orissa in a communication dated 3rd July 2002 addressed to the Petitioner took the view that there was no provision under IPR 1996 to extend the sales tax benefit for an additional two years. The Petitioner contended that this was contrary to a notification dated 2nd February 1999 issued by the State Government which clarified that all priority industries would be entitled to an additional two years of sales tax exemption. 9. The Petitioner also refers to a Notification No. SRO 141 2000 dated 17th February 2000 issued by the Finance Department Government of Odisha in terms of which existing industrial units already in receipt of incentives under an earlier notification dated 23rd April 1976 as amended from time to time "immediately before the 1st January 2000" would continue to avail incentives for the period of their eligibility under the notification. This notification further stipulated that where an industrial unit was „in the pipeline‟ W.P.(C) No.54909 as on 1st January 2000 it would be entitled to the incentive under the notification on same terms and conditions if it fulfilled the following criteria as on 1st January 2000: i. Industrial unit which is regd. under the Orissa Sale Tax Industrial Unit which has been allotted land for the iii. The industrial unit which has applied for finance from regular financial institution. iv. Industrial unit which will start commercial production before the 1st January 2000." 10. The Petitioner contended that it fulfilled each of the above criteria spelt out in SRO 141 2000. The Petitioner pointed out that Opposite Party No.3 by its letter dated 24th March 2003 had put out a list of industries that were „in the pipeline‟ as on 1st January 2000. The name of the Petitioner s unit was at Serial No. 24 of the said list. Further it was pointed out by the Petitioner that in exercise of powers conferred on it under Section 6 of the Orissa Sales Tax Act the Government of Orissa had brought out an amendment to Notification No. 206 dated 23rd April 1996 stipulating that for priority industries the period of exemption from payment of sales tax shall be extended by two additional years and that "there shall be no maximum limit on such exemption during the eligibility period." 11. On the above basis the Petitioner contended that it was not justified for the Opposite Party No.3 by communication dated 3rd July 2002 to hold that there was no provision to extend the sales tax benefit to the Petitioner for an additional two years. The W.P.(C) No.54909 Petitioner is stated to have made several representations. By communication dated 15th September 2004 the Commissioner cum DoI Orissa requested the Special Secretary to Government the Government to examine whether an existing SSI unit having graduated to Medium Scale could still avail the sales tax exemption available to the priority sector. 12. When thereafter the Government did not take any decision the Petitioner filed W.P.No.56705 in this Court. While the said writ petition was pending Opposite Party No.3 by a communication dated 15th October 2005 informed the Petitioner that the Department of Industries had reviewed the Petitioner s case and had come to the conclusion that the Petitioner unit could not be treated as an "industry in pipeline" as on 1st January 2000 and was therefore not entitled to any exemption in the capacity. It was indicated therein that the Petitioner had not satisfied the eligibility criteria since the item "moulded manufacturer" incorporated under the OST Act on 17th January 2000 i.e. after 1st January 2000. Accordingly the sales tax exemption certificate issued on 11th March 2002 was sought to be revoked and cancelled. 13. This led the Petitioner to file another W.P. No.13181 of 2005 in this Court challenging the order of cancellation. Both the above writ petitions were disposed of by this Court by an order dated 16th November 2005 the operative portion of which reads Under the aforesaid premises without expressing any opinion on the merit of both the cases we quash the order dt. 15.10.2005 passed by the Director of Industries Orissa Opposite Party No.2 under Annexure 7 and direct Opposite W.P.(C) No.54909 Party No.2 to take a decision afresh after giving a notice of show cause to the petitioner within a period of 4 weeks from today. The Petitioner shall file reply to the show cause within a period of one month from the date of receipt of the same. Thereafter Opposite Party No.2 shall decide the matter on its own merit with accordance with the law. The claims of the Petitioner is that the Industry is a priority Industry and entitled to get the benefit of sales tax exemption for seven years or otherwise shall also be decided by the Authorities dealing with the representation. In the meantime no coercive action shall be taken against the Petitioner till a decision is taken. The writ petitions are disposed of accordingly." 14. Thereafter a show cause notice dated 5th December 2005 was issued by the DoI to the Petitioner recording the prima facie view that the eligibility certificate granted to the Petitioner on 7th 11th March 2002 was erroneous and contrary to the various notifications issued by the Government of Odisha. The Petitioner replied to the SCN on 12th January 2006 explaining why it was entitled to the exemption. Thereafter by the impugned order dated 18th January 2008 the DoI held that the Petitioner s unit was not a new unit in terms of IPR 1996 and therefore not entitled to priority industry status thereby upholding the cancellation of the sales tax eligibility certificate issued on 15th October 1995. 15. In response to the notice issued in the present petition a counter affidavit has been filed on behalf of the Opposite Parties reiterating the impugned order and contesting the claim of the Petitioner to avail sales tax incentives under Clauses 5 6of IPR 1996. According to the Opposite Parties the said exemption was meant for „new‟ SSI Medium Large Industry. Accordingly W.P.(C) No.54909 the Petitioner‟s reply to the SCN was found to be without merit. The DoI upheld the cancellation of sales tax eligibility certificate issued vide order No.13193 dated 15th October 2005 in favour of the Petitioner. 16. The running theme of the counter affidavit is that the Petitioner s unit was not a „new‟ one under IPR 1996 and therefore was not eligible for the benefit of the sales tax exemption. It is stated by the Opposite Parties that the Petitioner s industry had executed an agreement with M s. Nilkamal Plastic Private Limited Nasik Maharashtra on 14th May 2001 with a view to undertake manufacture and sale of its own product i.e. moulded to avail sales tax exemption "giving the wrong representation." The item of moulded furniture was inserted by an amendment in the registration certificate with effect from 17th July 2001. There was no indication that the Petitioner was a registered dealer of moulded furniture on 1st January 2000. This led to review of the eligibility certificate issued earlier and its consequent cancellation. 17. The Petitioner filed a rejoinder pointing out that there were two notifications i.e. SRO 141 2000 which applied to existing units that had expanded and SRO 140 2000 which applied to new units and that both were dated 17th February 2000. It was pointed how since the Petitioner had graduated to a Medium Scale Industry and was an industry in the pipeline it was covered under SRO 141 2000. It was further pointed out that the tax exemption certificate dated 11th March 2002 was issued in terms of a Finance Department s notification No. SRO 475 dated 20th July 1996 which W.P.(C) No.54909 became effective on 1st February 1996. In the aforementioned notification dated 20th July 1996 a new serial number 44 was introduced which stated thus: State of finished products of an existing industrial unit where fixed capital investment has been commenced after 1st day of March 1996." 18. The Petitioner also pointed out in its rejoinder that it was a unit „in the pipeline‟ as it satisfied all the conditions stipulated in SRO 141 2000 dated 17th February 2000 and in fact the Petitioner figured at Serial No. 24 of a list of such industries prepared by the DoI on 24th March 2003. 19. This Court has heard submissions of Mr. S. P. Misra learned Senior Counsel appearing for the Petitioner and Mr. P. K. Muduli learned Additional Government Advocate for the State. 20. There appears to be a factual misconception on the part of the DoI about the status of the Petitioner which admittedly graduated from an SSI unit to a Medium Scale unit having undertaken the expansion and modernization drive. There also appears to be a misconception as regards the eligibility of the Petitioner for sales tax exemption for an additional two years since it is recognized as a priority industry." 21. While it is true that the Petitioner as a new unit was in the SSI category it graduated to a Medium Scale industry after the expansion and modernization drive. It satisfied the description of existing unit" that had undertaken expansion and modernization. It is the Opposite Parties themselves that had W.P.(C) No.54909 recognized the Petitioner as a "priority industry" by the order issued on 24th October 2002. 22. Once the Petitioner has been declared as a priority industry in terms of IPR 1996 Clause 2.7 and Part II the Petitioner s unit was eligible to get an additional two years of sales tax exemption. The Petitioner is right in its contention that the Opposite Parties are mistaken in their stand that IPR 1996 was meant only for a New SSI Medium Large industry. The notification issued by the Opposite Parties themselves belies this contention. SRO 475 96 dated 26th July 1996 referred to hereinbefore envisages an existing industrial unit undertaking fixed capital investment" and having commenced after 1st March 1996. Clearly this would include an existing unit which undertakes expansion and modernization after 1st March 1996. The certificate issued by the DoI on 7th March 2002 in Form II A granting the Petitioner eligibility for sales tax concession "on sale of finished products” acknowledges both the new products as well as the existing product viz. „air coolers‟. 23. The Petitioner has also pointed out how it satisfied all the requirements of being declared as a unit „in the pipeline‟ in terms of SRO 141 2000. This has not been able to be countered by the Opposite Parties. In particular they have been unable to dispute that the Petitioner was first registered as an SSI under the OST Act on 30th January 1997 which registration was kept renewed from time to time. The Petitioner for the purpose of its expansion purchased a land on 20th July 1998 i.e. prior to 1st January 2000. In other words the expansion drive was undertaken by an W.P.(C) No.54909 investment made after 1st March 1996. The Petitioner also applied to the State Bank of India on 8th December 1999 for finance i.e. prior to 1st January 2000. It was to commence its production before 1st January 2002. In fact it commenced its commercial production on 12th November 2001. 24. Further the Petitioner is a multiproduct industry. The dates of production of its various products as modified by a letter dated 15th September 2004 of the DoI reads thus: Emergency light b. UPS c. Moulded Furniture & other household goods TV setsDate of production 25. Indeed the Opposite Parties have no answer to the above contention of the Petitioner that it was a unit „in the pipeline‟ in terms of SRO 141 2000. The Petitioner has also clarified how its agreement with M s. Nilkamal Plastic Private Limited had no relevance to its claim for sales tax exemption. The machineries for the manufacture of moulded plastic furniture were purchased from M s. Nilkamal Plastic Private Limited under proper invoices challans and excise gate passes. It was the Petitioner that produced the finished products. That it was an industry in the pipeline as on 1st January 2000 has been admitted by the Opposite Parties themselves as its figures at Serial No. 24 of the list dated prepared by the DoI on 24th March 2003. With the Petitioner satisfying all the requirements of the applicable notifications there appears to be no justification in the Opposite Parties seeking to revoke the sales W.P.(C) No.54909 tax exemption thereby cancelling the certificate issued for that 26. For all the aforementioned reasons the Court sets aside the impugned decision dated 18th January 2008 of the DoI Opposite Party No.2 and revives the sales tax exemption certificate dated 15th October 2005 granted in its favour. In other words it is held that the Petitioner as a priority industry is eligible to avail sales tax benefit as contemplated under IPR 1996 in terms of notification dated 2nd February 1999 and therefore is entitled to sales tax exemption for an additional two years as claimed by the Petitioner. 27. The writ petition is allowed in the above terms but in the circumstances with no order as to costs. 28. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court‟s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court‟s Notice No.4587 dated 25th March 2020 as modified by Court‟s Notice No.4798 dated 15th April Chief Justice Judge M. Panda W.P.(C) No.54909 |
‘Equal pay for equal work’ holds the status of fundamental right in service jurisprudence: Ranchi High Court | In the case of Employer in relation to Management of Food Corporation of India vs. Employer in relation to Management of Food Corporation of India [W.P. (L) No. 3745 of 2009], the Ranchi high court observed ‘equal pay for equal work’ is the basic right of every individual and should be one of the fundamental right in service jurisprudence. The aggrieved was working as a typist in the corporation and completed 240 days of his service without retrenchment being paid of any kind. Since no retrenchment was paid to him, he being terminated of service was invalid. later when the circular was issued inviting applications for filling the job, he did not apply for it and chose to raise industrial dispute claiming regularization of service and got a reference made under Section 10 of the Industrial Dispute Act. The court relied on the remarks made by the counsel that there is no difference between the work of a casual Hindi Typist or the permanent Hindi Typist and the workman is performing the same, similar and identical duties to that of a regular Hindi Typist. Also that long service on the post in question is enough to prove eligibility/ qualification and as such, workman is qualified and eligible for the post of Hindi Typist as he is holding the post for more than 25 years without any complaint from any corner. The court believed the judgement passed in the case of Bharat Bank Ltd. V. Employees reported in AIR 1950 SC 188, it has been held in para 61 as under; “61. … … In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. it can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” “Law is well settled that there has to be equality in law and nobody can be discriminated if the nature of job is same and performance are same or similar, they are entitled for pay protection and salary on the principle of ‘equal pay for equal work’ In the case of “Mewa Ram Kanojia v. All India Institute of Medical Sciences [(SCC pp. 239 & 241, paras 5 & 7], while considering the question of application of ‘Equal pay for equal work’ it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned.” | 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 37409 Employer in relation to Management of Food Corporation of India a Body Corporate incorporated under the Food Corporation of India Act through its Area Manager Manoj Kumar son of C.P. Gond Resident of Nutan Nagar P.S. Civil Lines P.O. and District Gaya. V E R S U S … … Petitioner Anil Kumar son of Ram Parmeshwar Prasad Sharma Resident of FCI Civil Lines P.O. and P.S. Civil Lines District Gaya Bihar CORAM: HON BLE MR. JUSTICE DR. S. N. PATHAK Mr. Nipun Bakshi Advocate For Petitioner For the Respondent : Mrs. M.M. Pal Sr. Advocate Ms. Mohua Palit Advocate. C.A.V. on 08.09.2020 Pronounced on 21.10.2020 Dr. S.N. Pathak J. In view of outbreak of COVID 19 pandemic case was taken up through Video Conferencing and heard at length. Concerned lawyers had no objection with regard to the proceeding which was held through Video Conferencing and there was no complaint in respect to audio and video clarity and quality and after hearing at length the matter was reserved for final disposal. PRAYER OF THE PETITIONER MANAGEMENT Petitioner Management has approached this Court with a prayer for quashing the Award dated 08.05.2009 pronounced on 27.05.2009 passed by Presiding Officer Central Government Industrial Tribunal No. 1 Dhanbad passed in Reference Case No. 797 whereby a direction has been issued to the petitioner Management for regularization in service of the respondent workman. CASE OF THE PETITIONER MANAGEMENT The case of the petitioner Management is that the respondent workman was appointed on 04.12.1982 purely on casual basis. The workman has never pleaded that either any appointment letter was issued to him or he was appointed against any sanctioned post or his appointment was made after following any selection procedure or through employment exchange. The workman even did not bring on record anything to show that he was having requisite qualification for being appointed to the post of 2 Hindi Typist in Food Corporation of India. On 06.05.1984 the casual service of the workman was terminated which was challenged by him before the Central Government Industrial Tribunal No. 1 at Dhanbad. Vide Award dated 08.08.1990 the Central Government Industrial Tribunal No. 1 at Dhanbad held that the workman completed 240 days of service and since he had not been paid retrenchment compensation so his termination of service was wrong and a direction was made for his reinstatement. After his reinstatement in service on 10.05.1991 the workman is continuing in service on casual basis. It is further case of the Management that on 03.02.1995 a Circular inviting applications from internal candidates fulfilling eligibility criteria for filling up the post of Hindi Typist. Though a co worker applied for the said regular post but the workman respondent did not apply for the same and chose to raise industrial dispute claiming regularization of service and got a reference made under Section 10 of the Industrial Dispute Act vide Reference Case No. 76 of 1997. The said Reference was decided in favour of the workman holding that the concerned workman is entitled for regularization as Hindi Typist on regular basis since 13.12.1991 with full back wages and also entitled for pay protection from 08.05.1984 and a direction was passed to the Management to implement the Award within 30 days from the date of publication of the same. Being aggrieved by the same the Management has preferred instant writ petition. ARGUMENTS ON BEHALF OF THE PETITIONER MANAGEMENT Mr. Nipun Bakshi learned counsel appearing on behalf of the petitioner management argues litigious employment has been deprecated by the Hon’ble Supreme Court in the case of Uma Devi reported in 2006(6) SCC 1 and it has been held that the benefits of one time reglarisation to irregular workers who have put in more than ten years of service cannot be extended to those who are in service only by virtue of orders of Courts and Tribunals. The concerned workman has not been able to bring on record the appointment letter nor did he possess the requisite qualification. The concerned workman never appeared in any selection process held by the Management. The concerned workman did not fulfil the 3 conditions and criteria as laid down in FCI Staff Regulation of 1971. The direction to regularize the workman in service is totally contrary to law making the award unsustainable and the same is fit to be set aside. Relying on the Judgment reported in AIR 1992 SC 789 learned counsel further argues that the Hon’ble Apex Court has deprecated the backdoor entry in any establishment. Learned counsel further submits that it has clearly been held in the case of Uma Devithat the Supreme Court and the High Courts should not issue directions of absorption regularization or permanent continuance of temporary contractual casual daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme. Learned counsel further places heavy reliance in the Judgment passed in the case of Hari Nandan Prasad and Another Vs. Employer I R to Management of Food corporation of India and Another reported in7 SCC 190 and submits that it would depend on facts of each case whether order of regularization is necessitated to advance justice or has to be denied if giving of such a direction infringes upon the employer’s rights. It has further been argued that the law laid down in U.P. Power Corporation and Maharashtra SRTC cases is not contradictory to each other. On a harmonious reading of the two judgments even when there are posts available in the absence of any unfair labour practice the Labour Court cannot give direction for regularization only because a worker has continued as a daily wage worker ad hoc temporary worker for number of years. When the worker concerned does not meet the eligibility requirements of the post in question as per the recruitment rules he cannot be regularized in the said post. ARGUMENTS ON BEHALF OF THE RESPONDENT WORKMAN Mrs. M.M. Pal learned Sr. Counsel argues that the Award dated 08.05.2009 passed in Reference Case No. 797 is legal proper valid and is based on evidences on record and no interference is warranted by this Court. The writ petition is not maintainable and is fit to be dismissed. The respondent workman was appointed on 04.12.1982 and since then he is in continuous service without any break and he is still holding the post under the Management herein. There is clear finding of the Tribunal that the Regional Office Patna had written a letter to the District Manager FCI 4 Gaya for appointment of casual typist and approval was given by the Regional Office on 01.12.1982 on which post the workman was appointed after interview and the typing test and he is continuing to the said post. There is no difference between the work of a casual Hindi Typist or the permanent Hindi Typist and the workman is performing the same similar and identical duties to that of a regular Hindi Typist. Learned Sr. Counsel further argues that earlier also termination of the workman was challenged before the Tribunal and after the Award passed by the Tribunal he was reinstated to the original service with back wages. The long continuous service of more than 25 years itself is sufficient to prove eligibility of the workman. Quoting the established law reported in 2001 SC 706 learned Sr. Counsel argues that long service on the post in question is enough to prove eligibility qualification and as such workman is qualified and eligible for the post of Hindi Typist as he is holding the post for more than 25 years without any complaint from any corner. Learned Sr. Counsel further argues that in spite of having sanctioned vacant post the concerned workman has not been regularized arbitrarily in order to deny him regular pay scale as also to deny the benefits of regular services and accordingly the Award has rightly been passed holding the workman entitled to be regularized as a Hindi Typist since 13.12.1991 with full back wages and pay protection has also been given from 08.05.1984. Learned Sr. Counsel further argues that the workman has been denied regular appointments held in the years 1994 1995 and 1996. It is own scheme of the management to regularise the casual workers who have worked for more than 90 days on or before 02.05.1986 for which Circular was also issued but in spite of that the respondent was not regularized. One Manoj Kumar was also appointed as a casual typist at par with the workman and he was regularized as a regular typist from the year on the basis of the Award passed by the Tribunal but the workman has been denied the same. Learned Sr. Counsel further argues that more than 75 80 such casual workers who have worked for more than 90 days on or before 02.05.1986 were regularized under the FCI Management on the basis of Circular dated 06.05.1987 issued by the Head Quarters but in spite of that the benefits of regularization has not been extended to the workman till date even after continuous service of 25 years. 5 While concluding her arguments learned Sr. Counsel submits that during pendency of the writ petition the workman has already superannuated from his service on and from 23.01.2018 on attaining his age of 60 years. The typing speed of the workman dated 03.03.2014 along with order of superannuation has been placed on record along with written argument dated 02.09.2020. Learned Sr. Counsel further submits that in the circumstances appropriate directions may be passed to give him retiral benefits after regularizing his services. The Industrial Disputes Act is a benign measure which seeks to pre empt industrial tensions provide the mechanics of dispute resolution and set up the necessary infrastructure so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill. In order to achieve the aforesaid objectives the Labour Couts Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of the Industrial Disputes Act in one of its first and celebrated Judgment in the case of Bharat Bank Ltd. V. Employees reported in AIR 1950 SC 188 it has been held in para 61 as under “61. … … In settling the disputes between the employers and the workmen the function of the tribunal is not confined to administration of justice in accordance with law. it can confer rights and privileges on either party which it considers reasonable and proper though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” Be that as it may having considered rival submission of the parties across the bar and after examination of the documents brought on record this Court is of the view that there is no illegality or any infirmity in the order passed by the Presiding Officer Central Government Industrial Tribunal No. 1 Dhanbad in Reference Case No. 76 of 1997 on the following grounds: 6 Admittedly the documents brought on record filed by the Management as well as the concerned workman shows that there was vacancy of Hindi typist in the Management. Law is well settled that there has to be equality in law and nobody can be discriminated if the nature of job is same and performance are same or similar they are entitled for pay protection and salary on the principle of ‘equal pay for equal work’ In the case of “Mewa Ram Kanojia v. All India Institute of Medical Sciences it has been held as follows: the posts concerned. “5. While considering the question of application of principle of ‘Equal pay for equal work’ it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications duties and responsibilities of classification has reasonable nexus with the objective sought to be achieved efficiency in the administration the State would be justified in prescribing different pay scales but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality”. In the instant case though the workman and the other two persons who are doing the same and similar job as a regular Hindi Typist and Casual Hindi Typist and as there is no difference of work between them which is clear from the evidence of M.W. 1 Cross Examination] and when there is no vacancy as per the M.W. 3 sanctioned strength of seven and existing 6 permanent and one casual there is no reason to keep vacant the post of one Hindi Typist for an indefinite period. This amounts to malice in law. The Management cannot take the shelter of the Judgment passed in the case of Uma Deviand relevant abstracts para 4 of the Circular reads as under: In view of the above decision of the Board of Directors it has been decided to relax the ban on recruitment for filing in country level Category III and IV posts by considering full time casual daily rated employees who have been performed duties of regular employees of the Corporation under FCI Staff) Regulations 1971 and who have completed three months periods of service as on 2.5.1986 and passes the requisite qualification etc. The casual employees who do not fulfill the conditions of appointment for any entry level category III and IV posts shall be retrenched by paying retrenchment compensation as required under the provision of I.D. Act 1947. The age limit however be relaxed by the competent authority as specified in appendix II of the FCI Regulation to the extent of service rendered by Corporation on daily rated casual basis. This decision shall not apply for part time casual employees and they shall not be regulated.” such casual employees In view of policy decision of the Food Corporation of India which is a Govt. of India undertaking services of all similarly situated workers have been regularized because they were fulfilling required criteria of three months service as on 2nd May 1986. Present Worker Shri Jamuna Das was admittedly working for the year 1972 73. This fact has already been established as per the award passed by the tribunal and therefore when this policy decision was applied for other similarly situated workers there is no reason for the Food Corporation of India not to follow the same with respect to the present worker Shri Jamuna Das.” …. . .. … … 18. This aspect of the matter has also not been properly appreciated by the learned Single Judge. It appears that several decision in Uma Deviwas relied upon by the learned Single Judge. But we like to observe here that the ratio decidendi in these cases does not apply to the present case. Nonetheless said ratio should be read in the context of facts of the present case. No Judge can lost site of the facts. The fabric of the facts is to be viewed in its proper perspective. When there is already a policy decision of the Food Corporation of India for regularization and when the concerned workmen are fulfilling all the criteria including the length of service on or before a particular cut off date said policy decision is 8 to be followed by the Management uniformly in all cases. The Management can not adopt pick and choose method in regularization. Applying the policy decision in few cases while not doing so with respect to others tantamount not only to discrimination but also to arbitrariness on the part of the respondent Management and whenever there is arbitrariness there is always a breach of right to equality. Arbitrariness and equality are sworn enemies. When arbitrariness is present equality is always absent and vice versa. Thus there was already a policy decision issued by the respondent Food Corporation of India under which if any casual worker or daily wages worker on or before 2nd May 1986 has completed three months’ of service he should be regularized and as per the said policy decision similarly situated co workers have been regularized. The present workman Jamuna Das was also fulfilling the criteria of the completion of three months’ service on 2nd May 1986 as required under the said policy decision. In these circumstances no error has been committed by Central Government Industrial Tribunal No. 1 Dhanbad in passing the Award dated 6th May 1997 in Reference No. 122 of 1996. This aspect of the matter has also not been properly appreciated by the learned Single Judge while allowing the writ petition. The Hon’ble Apex Court in the case of Hari Nandan Prasad and Another Vs. Employer I R to Management of Food Corporation of India and Another reported in7 SCC 190 : 2014 SCC OnLine SC 132 at page 209 has also dealt with similar matter and in paragraphs 28 30 and 34 it has held as under: in Maharashtra SRTC “28. The Corporation challenged the decision of the learned Single Judge by filing LPAs which were the Division Bench on 6 5 2005 dismissed by Maharashtra SRTC v. Kishore Kondiram Jagade 2006) 2 Bom CR 340 :4 Mah LJ 798] . This is how the matter came before the Supreme Court. One of the contentions raised by the appellants before this case8 SCC 556 :2 SCC513] was that there could not have been a direction by the Industrial Court to give these employees status wages and other benefits of permanency applicable to the post of cleaners as this direction was contrary to the ratio laid down by the Constitution Bench of this Court in Umadevi [State of Karnataka v. Umadevi 9 3) 4 SCC 1 : 2006 SCC 753] . The Court while considering this argument went into the scheme of the MRTU and PULP Act. It was inter alia noticed that complaints relating to unfair labour practice could be filed before the Industrial Court. The Court noted that Section 28 of that Act provides for the procedure for dealing with such complaints and Section 30 enumerates the powers given to the Industrial and Labour Courts to decide the matters before it including those relating to unfair labour practice. On the reading of this section the Court held that it gives specific power to the Industrial Labour Courts to declare that an unfair labour practice has been engaged and to direct those persons not only to cease and desist from such unfair labour practice but take affirmative action. Section 30(1) conferring such powers is reproduced below: “30.Powers of Industrial and Labour Courts.—(1) Where a court decides that any person named in the complaint has engaged in or is engaging in any unfair labour practice it may in its order— a) declare that an unfair labour practice has been engaged in or is being engaged in by that person and specify any other person who has engaged in or is engaging in the unfair labour practice b) direct all such persons to cease and desist from such unfair labour practice and take such including payment of reasonable compensation to the employee or employees affected by the unfair labour practice or reinstatement of the employee or employees with or without back wages or the payment of reasonable compensation) as may in the opinion of the court be necessary to effectuate the policy of the Act c) where a recognised union has engaged in or is engaging in any unfair labour practice direct that its recognition shall be cancelled or that all or any of its rights under sub sectionof Section 20 or its right under Section 23 shall be … … … “30. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and empowers the Industrial Labour Courts to decide about the unfair labour practice committed being committed by any person and to 10 declare a particular practice to be unfair labour practice if it so found and also to direct such person to cease and desist from unfair labour practice. The provisions contained in Section 30 of the MRTU and PULP Act giving such a power to the Industrial and Labour Courts vis à vis the ratio of Umadevi 3)(2006) 4 SCC 1 : 2006 SCC753] are explained by the Court in the following terms: 8 SCC 556 :2 SCC513] SCC pp. 573 74 paras 32 33 & 36) SRTC v. Casteribe “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. 33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under in Umadevi Karnataka v. Umadevi (2006) 4 SCC 1 : 2006 SCC753] . As a matter of fact the issue like the present one pertaining to unfair labour practice was not at all referred to considered or decided in Umadevi [State of Karnataka v. Umadevi (2006) 4 SCC 1 : 2006 SCC practice on the part of the employer in engaging employees as badlis casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. L&S) 753] 3)[State of Karnataka v. Umadevi 3) 4 SCC 1 : 2006 SCC 753] 11 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi 3)(2006) 4 SCC 1 : 2006 SCC 753] cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and the PULP Act once unfair labour practice on the part of the employer under Item 6 of Schedule IV is … … … in Bhonde “34. A close scrutiny of the two cases thus would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corpn.5 SCC 755 : 2 SCC 258] this Court has recognised the powers of the Labour Court and at the same time emphasised that the Labour Court is to keep in mind that there should not be any direction of regularisation if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi[State of Karnataka v. Umadevi(2006) 4 SCC 1 : 2006 SCC753] is primarily founded. On the other hand case106 FLR 1171 : 2005 AIR Jhar R 1962] the Court has recognised the principle that having regard to the statutory powers conferred upon the Labour Court Industrial Court to grant certain reliefs to the workmen which includes the relief of giving the status of permanency to the contract employees such statutory power does not get denuded by the judgment in Umadevi case(2006) 4 SCC 1 : 2006 SCC 753] . It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filling up permanent posts even when available and continuing to employ workers on temporary daily wage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice as enumerated in Schedule IV of the MRTP and PULP Act and it necessitates giving direction under Section 30 of the said Act that the court would give such a direction.” 12 Though the workman was reinstated but instead of regular Typist he was allowed to join as a casual typist in the year 1991. From the evidences brought on record it appears that there was regular appointments of regular typist by the Management but the concerned workman was neither informed nor any opportunity was to confirm his as a regular typist. Even after his reinstatement the Management made regular appointments in the years 1994 1995 and 1996 but nothing has been brought on record to show that the concerned workman was ever informed or given any opportunity to participate for appointment as a regular typist. The nature of work of casual typist and the regular typist are same and similar. The concerned workman has been discriminated as he was getting salary of Rs.1 400 though on salary hike he was getting a sum of Rs.1 890 per month but the regular typist who was appointed in the year 1984 was getting monthly salary of Rs.8 000 besides the other benefits of Earned Leave Commuted Leave etc. The similarly situated one Manoj Kumar who was also appointed as a casual typist at par with the workman was regularized as a regular typist on the basis of the Award passed by the Tribunal but the workman has been denied the same. Even the Circular dated 02.05.1986 has not been considered by the Management and the petitioner has not been regularized though there was clear vacancies in the cadre of regular typist. Deliberately he was allowed to continue as a casual typist. The law is well settled that there has to be equality before the law. the workman is entitled for equal pay for equal work. Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of Directive Principles of State Policy as contained in Article 39(d) of the Constitution of India “Equal pay for equal work” has assumed the status of fundamental right in service jurisprudence having regard to the Constitutional mandate of equality in Articles 14 and 16 of the Constitution of India. It ensures a welfare socialistic pattern of a State providing 13 equal opportunity to all and equal pay for equal work for similarly placed employees of the State. It has elaborately been dealt with in the case of Grih Kalyan Kendra Workers’ Union V. Union of India reported in1 SCC 619. Considering other aspects of the matter it is also well settled that the orders of the Tribunal can only be interfered if there is gross illegality and the order is perverse and without jurisdiction. Nothing has been argued nor brought on record to show that the order passed by the Tribunal is without jurisdiction and is full of illegality and is perverse. This Court sitting under Article 226 and 227 of the Constitution of India can only interfere if the aforesaid elements are attracted. In absence of the same no interference is warranted. In view of facts and circumstances discussed hereinabove this Court is in full agreement with the Award passed by the learned Tribunal. I do not find any infirmity or any illegality in the impugned Award. No interference is warranted by this Court in the impugned Award. Resultantly the writ petition merits dismissal. Since the workman has already superannuated from his service on and from 23.01.2018 on attaining his age of 60 years he is entitled to all the benefits in terms of the Award dated 08.05.2009 announced on 27.05.2009 passed by Presiding Officer Central Government Industrial Tribunal No. 1 Dhanbad passed in Reference Case No. 76 of 1997 i.e. full back wages after regularization of his services as a Hindi Typist since 13.12.1991 and pay protection from 08.05.1984. The writ petition stands dismissed with aforesaid observations and directions. In the result I.A. No. 64213 also stands disposed of. |
Non-Satisfaction with the Result of the Election, Require to Appeal at Respective Authorities directed in Sections 162 & 175 of H.P. Panchayati Raj Act, 1994: High Court of Shimla | When a Rule or a set of Rules specifically permits or enables a person to approach an appropriate Authority to redress his or her grievances, he or she should avail that remedy under the appropriate provisions of law. This honorable judgement was passed by High Court of Shimla in the case of Rekha Thakur v. State of H.P. & others [CWP No. 656 of 2021] by The Hon’ble Mr. Justice L. Narayana Swamy and The Hon’ble Ms. Justice Jyotsna Rewal Dua. In the present writ petition, the petitioner had made a prayer to issue a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member, Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P. Except this, the petitioner had not made any other prayer.Petitioner submits that she had contested election for the post of Member, Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P. The result of the said election was declared on 23.01.2021 and one Sangeeta Devi was declared winner for the said post. She further submits that during the counting process, the proper procedure was ignored by the polling party just to give undue advantage to the counter part of the petitioner, i.e. aforesaid Sangeeta Devi. She also summited that at about 12.45 a.m. on the same day, she had made written request to respondents No. 3 & 4 for recounting of the votes vide respectively, but the respondents did not take any steps for recounting the votes. Hence, the petitioner had preferred this writ petition seeking a writ of mandamus directing the respondent-Authorities to recount the polled votes for the post of Member of Zila Prishad, Ward No. 16, Sanghnei, District Una, H.P The court opinioned that, “Even if we accept the prayer of the petitioner made in the writ petition, no decision can be made against a person, who is not a party to the writ petition. If a person is affected by an order of the Court, he should have been made party to the lis. The nature of the prayer made in the writ petition, requires consideration by the Statutory Authorities. The same also requires recording of evidence and marking of documents etc., which is not permissible before this Court” | Hig h C o urt of H.P on 25 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 6521 Date of decision: 24.03.2021 _____________________________________________________ Rekha Thakur …..Petitioner Versus State of H.P. & others …Respondents ________________________________________________________ Coram: The Hon’ble Mr. Justice L. Narayana Swamy Chief Justice The Hon’ble Ms. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 __________________________________________________ For the petitioner : Mr. Vinay Sharma Advocate. For the respondents: Mr. Ashok Sharma Advocate General with Mr. Adarsh Sharma & Ms. Ritta Goswami Additional Advocates General for respondents No. 1 3 & 4. Mr. Ajeet Singh Saklani Advocate for respondent No. 2. L. Narayana Swamy Chief Justice Petitioner submits that she had contested election for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. The result of the said election was declared on 23.01.2021 and one Sangeeta Devi was declared winner for the said post. She further submits that during the counting process the proper procedure was ignored by the polling party just to give undue advantage to the counter part of the petitioner i.e. aforesaid 1 Whether the reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 25 03 HCHP 2 Sangeeta Devi. She also submits that at about 12.45 a.m. on the same day she had made written request to respondents No. 3 & 4 for recounting of the votes vide Annexures P 5 & P 4 respectively but the respondents did not take any steps for recounting the votes. Hence the petitioner has preferred this writ petition seeking a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member of Zila Prishad Ward No. 16 Sanghnei District Una H.P. 2. Learned Counsel for the petitioner submits that result of the election for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. was declared on 23.01.2021. He draws our attention to Section 79 of the H.P. Panchayati RajRules 1994 which provides for recounting of votes if a request for the same is made within a reasonable time. He further submits that in the present case since the petitioner had made request for recounting of votes within a reasonable time the District Election Officeror Returning Officer as the case may be or any other Officer authorized is duty bound to recount all or any of the ballot papers already counted. In the present case respondents No. 3 & 4 i.e. Deputy Commissioner and Returning Officer failed to discharge their duties as a result of Hig h C o urt of H.P on 25 03 HCHP 3 which the petitioner was deprived of her right of being elected to the post of the Member of the Zila Parishad. 3. On the other hand learned Advocate General representing respondents No.1 3 & 4 submits that the writ petition is not maintainable as an election petition was required to be filed instead of the writ petition. He further submits that if a prayer is made with regard to election the same is required to be made by way of filing an election petition before the appropriate Authority under the appropriate provisions of law. He draws our attention to Sections 162 & 175 Chapter XI of the H.P. Panchayati Raj Act 1994which provides that if a person is not satisfied with the result of the election and intends to pray for recounting of votes an election petition is required to be presented before the appropriate Authority under the aforesaid provisions of law. He also draws our attention to Section 175(iii) of the Act which provides that for non compliance with the provisions of the Act or any Rule made under the Act the authorized Officer shall declare the election of the elected person to be void. He therefore prays that the writ petition be dismissed. 4. Learned Counsel representing respondent No. 2 submits that the writ petition be dismissed as the same is not Hig h C o urt of H.P on 25 03 HCHP 4 maintainable. He further submits that when a Rule or a set of Rules specifically permits or enables a person to approach an appropriate Authority to redress his or her grievances he or she should avail that remedy under the appropriate provisions of law and it is not open for him or her to approach a Court of law. He further submits that when a particular work is required to be done in a particular manner the same should be done in that particular manner only and not by any other method or way. 5. We have heard learned Counsel for the parties and perused the entire file carefully. 6. In the present writ petition the petitioner has made a prayer to issue a writ of mandamus directing the respondent Authorities to recount the polled votes for the post of Member Zila Prishad Ward No. 16 Sanghnei District Una H.P. Except this the petitioner has not made any other prayer. 7. From the perusal of Sections 162 & 175 of the Act it is evident that if a prayer is made with regard to election the same is required to be made by way of filing an election petition before the appropriate Authority under the appropriate provisions of law. Thus we are satisfied with the submission of the learned Advocate General that the petitioner should have approached the appropriate Hig h C o urt of H.P on 25 03 HCHP 5 Authority by filing an election petition instead of approaching this Court for the redressal of her grievances. 8. Even if we accept the prayer of the petitioner made in the writ petition no decision can be made against a person who is not a party to the writ petition. If a person is affected by an order of the Court he should have been made party to the lis. The nature of the prayer made in the writ petition requires consideration by the Statutory Authorities. The same also requires recording of evidence and marking of documents etc. which is not permissible before this Court. 9. For the aforesaid reasons the writ petition deserves to be dismissed. 10. From the perusal of Annexures P 4 & P 5 it appears that the petitioner has not mentioned specific grounds which could influence the Authorities concerned to recount votes. Thus it is made clear that if a representation for recounting the votes is made by the petitioner to the respondent Authorities concerned within a reasonable time the specific grounds for recounting votes alongwith supporting documents should be mentioned therein. In the event of the petitioner approaching the respondents Authorities Hig h C o urt of H.P on 25 03 HCHP 6 concerned the respondents are directed to consider the case of the petitioner and pass appropriate orders in accordance with law. 11. Accordingly the writ petition is dismissed alongwith pending application(s) if any. Chief Justice. March 24 2021 (hemlata) Judge. |
Sehgal School of Competition vs Dalbir Singh | Background: The Consumer Protection Act: Established in 1986, it aims to provide better protection to the rights and interests of consumers. The Act empowers consumers to redress their grievances or disputes through consumer councils and various authorities for settlement of disputes. This act is regarded as ‘Magna Carta in the field of consumer protection to keep a check on unfair trade practices, defects in goods, and deficiencies in services. Introduction: This case further emphasized the Consumer Protection Act, 1986 when it comes to seeking redress by the consumer. The given case revolved around a student (respondent) who was denied a refund of his fee by his medical coaching institute (appellant). The court in its judgment has further highlighted that denying refund of fee under the guise of a condition imposed by an institution was against the principles of equity, natural justice, and fair trade. Constitution and Statutory provisions discussed: Consumer Protection Act, 1986 Facts: The respondent had taken admission at the appellant’s institute for coaching for the medical entrance examination for a period of 2 years. The respondent had deposited the lump sum fees of Rs. 18,734 in two installments within six months. After a year, the respondent left the institute mid-way on the ground that it wasn’t up to the mark as the faculty members of the institute taught mostly engineering subjects and higher preference was given to engineering students. As the situation was not improving the respondent decided it would be futile to waste another year in such a situation and withdrew from the institute. He had asked for a refund of the balance fees which was declined. Aggrieved by this the respondent filed a complaint before the district forum for relief. The district forum directed the appellant to refund part of the fees of Rs. 18,734 without any compensation for mental agony, etc. Issues: Judgment: The court in the given case was of the same view as that which had been upheld by the National Commission and the Supreme Court which states that ‘no institute or coaching center shall charge lump sum fees for the whole duration or should refund the fees if there is a deficiency in service in the quality of coaching etc. or for which period the student does not attend coaching as any clause saying that fees once paid shall not be refunded are unconscionable and unfair and therefore not enforceable. The court while applying the above principle found no merit in the appeal and dismissed it. Thus, the court disposed of the appeal and stated that the payment should be made within one month. Aggrieved by the decision of the State Commission the appellant filed a revision petition before the National Consumer Disputes Redressal Commission (NCDRC). Revision Petition No. 813 of 2009 in Appeal No. 1043 of 08 Equivalent citations: 2009 (3) CPR 363 (NC): III (2009) CPJ 33 (NC): 2009 (3) CPC 187. Decided on: 30th April 2009. Bench: Hon’ble Justice B.N.P. Singh (Presiding Member). Hon’ble Dr. P.D. Shenoy, Member. Arguments: Contentions put forth by petitioner: Judgment: The court stated that the appellant’s condition about non-refundability was biased and in favor of the petitioner and against the principle of equity and natural justice. It further stated that it was not a fair-trade practice. It stated that the case law referred by the petitioner was 13 years old and in the subsequent judgments it has been held that it is unjust to collect the fees for the total duration of the course. The court relied on the judgment of Nipun Nagar vs. Symbiosis Institute of International Business, where it was held that the Institute was unfair and unjust in retaining the tuition fee of Rs. 1 lakh even after the student withdrew from their institute. Thus, the court in the present case stated that the collection of total fees by the institute was an unjust and unfair trade practice and on the above grounds stated that, “Therefore, we do not see any material irregularity or jurisdictional error in the order passed by the State Commission. Accordingly, this Revision Petition is dismissed. There shall be no order as to cost.” Thus, the petition was dismissed and the court pronounced its judgment in favor of the respondent. The additional compensation for mental agony due to approaching legal forum was not granted as the same was not mentioned in the petition. The court held that there shall be no order relating to cost and the school was required to refund the amount to the respondent. Conclusion: Thus, the court through its judgment upheld that non-refundability of fees by an institution would amount to unfair trade practice and held that it would be unjust to collect lump sum fees for the total duration of the course. | Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 State Consumer Disputes Redressal Commission Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI under Section 9 Clauseof the Consumer Protection Act 1986) Date of Decision: 10 12 2008 Appeal No FA 08 1043 Indian Kanoon Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 out of Order dated 10 10 2008 passed by District Forum Janakpuri New Delhi in Complaint No. 161 2007) Sehgal School of Competition 30 Central Market 2nd floor Punjabi Bagh New Delhi. Appellant Versus Indian Kanoon Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 Shri Dalbir Singh C 18 Guru Gobind Singh Government Hospital Complex Raghubir Nagar New Delhi. . Respondent CORAM JUSTICE J.D KAPOOR PRESIDENT MS. RUMNITA MITTAL MEMBER Whether Reporters of local newspapers be allowed to see the judgment 2. To be referred to the Reporter or not Indian Kanoon Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 KAPOOR1. Admittedly the respondent took admission in the Institute of the appellant for coaching for Medical Entrance Examination which was for duration of two years. Lump sum fees of Rs. 18 734 was deposited on 1 5 2005 and the remaining amount of Rs. 18734 was deposited in two instalments on 7 7 2005 and 7 10 2005 i.e. the entire fee was deposited within six months However the respondent student left midway after a year or so on the ground that after attending coaching he found that it was not up to the mark as he had taken admission for coaching in Medical Entrance Test whereas Institute faculty members were mostly teaching Engineering subjects and giving preference to engineering students. He thought that things would improve but they did not and therefore he preferred not to waste one year more and withdrew from the Institute and asked for refund of the balance fees which was declined and consequently he filed the instant complaint before the District Forum for relief 2. The District Forum vide impugned Order dated 10 10 2008 has only directed the appellant to refund part of fees Rs. 18 734 without any compensation for mental agony harassment having been forced to approach the legal forum i.e. the Consumer Forum for redressal of his grievances as well as cost of litigation 3. We have already taken a view which has been upheld by the National Commission and the same view was also taken by the Supreme court that no institute or coaching center shall charge lump sum fees for the whole duration or should refund the fees if there is deficiency in service in the quality or coaching etc. or for which period the student does not attend coaching as any clause saying that fees once paid shall not be refunded are unconscionable and unfair and therefore not enforceable Applying this principle we do not find any merit in the appeal and dismiss the same as we apprehend the respondent may even file an appeal seeking higher compensation or damages However since there is no such appeal before us as yet therefore we are not passing any such 4. Appeal is disposed of in aforesaid terms. Payment shall be made within one month from the date of receipt of a copy of this Order Indian Kanoon Sehgal School Of Competition vs Dalbir Singh on 10 December 2008 5. Copy of Order as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record 6. FDR Bank Guarantee if any be released under proper receipt JUSTICE J.D. KAPOOR) PRESIDENT MEMBER HK Indian Kanoon |
Dacoity can be proven only if the assembly of 5 or more person have gathered with the intention of dacoity is shown. : Allahabad High Court | Whoever makes any preparation for committing dacoity must be punished by imprisonment for a term not exceeding ten years, as well as a fine.’ And whoever, at any time after the passage of this Act, is a member of a group of five or more people gathered for the purpose of committing dacoity, shall be punished by rigorous imprisonment for a duration of up to seven years, as well as a fine, this was referred by Justice Raj Beer Singh of the Allahabad High Court in the matter of Ruri versus The State [CRIMINAL APPEAL No. – 161 of 1982] The order regarding this was passed when According to the prosecution, on June 23, 1979, at around 09.15 p.m., a police party consisting of PW-1 S.I. Devichand, PW-2 constable Sardar Singh, PW-3 S.O. Suraj Pal Singh, and other police officials left the police station Pahasu, district Bulandshahar, for patrolling in the area of the station. They were on their way to village Lal Nair after visiting Pitampura, Sarangpur, and Nagla Hari Singh, and when they got close to Dharamshala Hargyan in the jungle of village Turkipura, they heard some voice from inside the said Dharamshala, and on suspicion of anti-social elements, S.I. Surajpal divided the police party into two groups, and they saw that five armed men were inside. Other criminals claimed that Chhanga Khatik’s residence is located on one side of village Turkipura and that they may easily conduct dacoity there. At the same moment, a police party confronted them, and four of the miscreants were captured on the scene, while one of the miscreants managed to leave. Ruri, Kishore, Ranjit, and Jagdish were the miscreants apprehended at the scene, and one country-made pistol of 12 bore with five cartridges was recovered from Kishore, one country-made pistol of 12 bore with four cartridges was recovered from Ranjit, one country-made pistol with three cartridges was recovered from Ruri, and one country-made pistol with three cartridges was recovered from Ruri. According to recovery memo Exhibit Ka-2 through Exhibit Ka-5, the found firearms were sealed on the scene and taken into possession. Seizure memo Exhibit Ka-6 also included some beedis and matchboxes found on the scene. Seizure memos Exhibit Ka-10 and Exhibit Ka-11 show that two torches were also taken. On June 24, 1979, at 03.15 a.m., the accused were brought to the police station and a case was filed against them under Sections 399, 402 IPC, and Section 25 of the Arms Act. PW-1 S.I. Devichandra claimed in testimony that he was posted as a sub-Inspector at police station Pahasu in the month of June 1979. On June 23, 1979, he and other police officers left the police station for patrolling, and after visiting villages Pitampura and Nagla Hari Singh on their way to village Tukipura, they arrived near Hargayan Dharamshala. They could hear noise and smell smoke coming from the dharmshala. The station officer divided the police party into two groups, and they arrived at the said dharmshala, where they overheard five people conversing in the dharmshala’s verandah, one of whom said, “Let us wait for Pahalwan,” and another stated, In village Turkipuri, the house of Changa Khatik is outside.” The police party confronted them at the same time, and four of the miscreants, including the appellants, were detained on the scene, while one managed to leave. On their search, one country-made pistol of 12 bore was recovered from each of the accused-appellant. Some live cartridges were also recovered from them. The accused’s guilt must be shown beyond all reasonable doubt, according to a core premise of criminal law. The prosecution bears the duty of proving its case beyond a reasonable doubt, and this burden never transfers. Another golden thread that runs through the web of criminal justice administration is that if two viewpoints on the evidence presented in the case are feasible, one pointing to the accused’s guilt and the other to his innocence, the view favourable to the accused should be accepted.[Vide Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan V. Raja Ram, (2003)8 SCC 180; Chandrappa & Ors V State of Karnatka, (2007) 4 SCC 415; Upendra Pradhan V. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. V. State of Assam and Anr., (2015) 11 SCC 242]. In the instant case considering the entire evidence, it appears that the prosecution version lacks genuineness and authenticity. The prosecution’s account appears unnatural because it’s quite unlikely that the aforementioned police officials could have overheard the appellants indicating they were going to conduct dacoity. Even if the purported dialogue is true, it scarcely qualifies as an offence under sections 399 and 402 of the IPC. In light of the facts and circumstances of the case, it cannot be ruled out that a storey about one of the miscreants fleeing the scene was presented to bring out figure five and put the case within the scope of the offence punishable under section 402 IPC. Furthermore, there is no proof that the supposedly recovered firearms were operational. | Ruri vs State on 1 March 2021 Allahabad High Court Ruri vs State on 1 March 2021 Bench: Raj Beer Singh HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 19.11.2020 Delivered on 01.03.2021 CRIMINAL APPEAL No. 1682 Connected With CRIMINAL APPEAL No. 1582 1. Kishoreand Section 25 of Arms Act police station Pahasu district Bulandshahar whereby accused appellants namely Ruri Kishore Ranjit and Jagdish have been convicted under Sections 399 402 IPC and Section 25 of Arms Act and they have been sentenced to undergo four years rigorous imprisonment under Section 399 IPC three years rigorous imprisonment under Section 402 IPC and one year rigorous imprisonment under Section 25 of Arms Act. All the sentences were directed to run concurrently 2. During pendency of these two appeals accused appellant No. 1 and 2 namely Kishore and Ranjit in criminal appeal no. 1582 have passed away and thus the appeal No. 1582 in respect of said accused appellant Kishore and Ranjit has been abated by order dated 12.07.2016 passed in criminal appeal no. 1582 3. According to prosecution version on 23.06.1979 a police party comprising of PW 1 S.I Devichand PW 2 constable Sardar Singh PW 3 S.O. Suraj Pal Singh and some other police officials have left the police station Pahasu district Bulandshahar at around 09.15 PM for patrolling in the area of police station. After visiting village Pitampur Sarangpur and Nagla Hari Singh they were proceeding towards village Lal Nair and when they reached near Dharamshala Hargyan in the jungle of village Turkipura they heard some voice from inside the said Dharamshala and on suspicion that there may be some anti social elements S.I. Surajpal divided the police party into two groups and after that they saw that five persons were sitting and smoking in the veranda of said Dharamshala and the police officials heard their conversation and that one of them was saying that their companion Pahalwan has not come so far. On this other miscreant said that house of Chhanga Khatik is situated in one side of village Turkipura and they can easily commit dacoity there. At the same time police party challenged them and four miscreants were apprehended at the spot whereas one of the miscreant succeeded in fleeing away from there. The identity of the miscreants who were apprehended at the spot was revealed that Ruri Kishore Ranjit and Jagdish and one country made pistol of 12 bore along with five cartridges was recovered from Kishore one country made pistol of 12 bore along with four cartridges was recovered from Ranjit one country made pistol along with three cartridges was recovered from Ruri and one country made pistol along with three cartridges was recovered from Jagdish. The recovered weapons were sealed at the spot and taken into possession vide recovery memo Exhibit Ka 2 to Exhibit Ka 5. Some beedis and matchbox lying at the spot were also seized vide seizure memo Exhibit Ka 6. Two torches were also seized vide seizure memo Exhibit Ka 10 and Exhibit Ka 11. Accused persons were brought to the police station and a case was got registered against them on 24.06.1979 at 03.15 AM under Sections 399 402 IPC and Indian Kanoon Section 25 of Arms Act Ruri vs State on 1 March 2021 4. The case was investigated by PW 4 S.I. Hukam Singh. Site plan of spot was prepared and statements of witnesses were recorded and after completion of investigation all the accused appellants were charge sheeted under Sections 399 402 IPC and Section 25 of Arms Act 5 . I n s u p p o r t o f i t s c a s e p r o s e c u t i o n h a s e x a m i n e d f o u r w i t n e s s e s . A f t e r e v i d e n c e accused appellants were examined under Section 313 Cr.P.C. wherein they have denied evidence and claimed that they were falsely implicated. However no evidence was led in defence 6. After hearing and analysing evidence on record accused appellants were convicted by the trial court under Sections 399 402 IPC and Section 25 of Arms Act vide impugned judgment and sentenced as stated in paragraph no. 1 of this judgment 7. Being aggrieved by the order of conviction accused appellant Ruri has preferred criminal appeal No. 1682 and accused appellants Kishore Ranjit and Jagdish have preferred criminal appeal no. 1582 before this Court 8. Heard Sri Vivek Prasad Mathur learned counsel for accused appellant Ruri in criminal appeal no 1682 and Ms. Archana Singh learned Amicus Curiae for surviving accused appellant Jagdish in criminal appeal no. 1582 and Sri Amit Kumar Singh learned A.G.A. for the State 9. In evidence PW 1 S.I. Devichandra has inter alia stated that in month of June 1979 he was posted as sub Inspector at police station Pahasu. On 23.06.1979 he along with Station officer Surajpal Singh other police officials left police station for patrolling and after visiting villages Pitampur Nagla Hari Singh while going to village Tukipura they reached near Hargayan dharamshala. There they felt some commotion and smoking from the said dharmshala. The station officer divided the police party in two groups and after that they reached at the said dharmshala and by concealing themselves by the side of wall they heard the conversation of five persons who were sitting in verandah of dharamshala and that one of them was saying that let us wait for Pahalwan and on this another stated that in village Turkipuri the house of Changa Khatik is outside of village and that they can easily commit a dacoity there and that now they must not waste time and must proceed. At the same time the police party challenged them and thereafter four of the miscreants including the appellants were apprehended at the spot while one succeeded in fleeing away. On their search one country made pistol of 12 bore was recovered from each of the accused appellant. Some live cartridges were also recovered from them 10. PW 2 Constable Sardar Singh and PW 3 SO Surajpal Singh have also reiterated same version and deposed about apprehension of accused appellants and recovery country made pistols and cartridges from them in the similar manner as stated by PW 1 11. PW 4 SI Hukm Singh has conducted investigation Indian Kanoon Ruri vs State on 1 March 2021 12. In this case accused appellants have been convicted under Section 399 402 of IPC and Section 25 of Arms Act. For better understanding the provisions of Sections 399 and 402 IPC are reproduced herein as under 399. Whoever makes any preparation for committing dacoity shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine. 402. whoever at any time after the passing of this Act shall be one of five or more persons assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine Thus in order to prove the charge under section 402 IPC it is necessary for the prosecution to prove that five or more persons have assembled with the intention to commit dacoity whereas for proving the offence under section 399 IPC it is necessary for the prosecution to prove that some additional steps have been taken in the course of preparation to commit dacoity 13. In the instant case it may stated that as per prosecution version the police officials have no previous information regarding any miscreant at alleged dharamshala and when they reached near dharamshala they felt presence of some persons in the dharamshala and by concealing themselves by the side of wall they heard conversation of accused persons who were sitting in verandah of dharamshala and that one of them was saying that let us wait for Pahalwan and on this another stated that in village Turkipuri the house of Changa Khatik is outside of village and that they can easily commit a dacoity there and that now they must not waste time and must proceed. As per prosecution version there were 8 police officials in the police party. It appears highly unreliable and improbable that such number of police officials after reaching at the dharamshala and by concealing by the side wall of alleged dharamshala might have seen the alleged five persons and even heard their alleged conversation but said miscreants could not feel their presence. Further it does not appears natural that the alleged miscreants would have been talking in such loud voice about committing dacoity that it could be heard by members of police party who were outside of the dharamshala. It appears thoroughly improbable that police officials could have heard the conversation of said miscreants who were sitting inside the dharamshala or that the said miscreants would have been talking in such loud voice that now they must go for committing dacoity 14. Further as per prosecution version one of the miscreant has succeeded in running away from the spot. It appears from record that there were about 8 9 police officials in the police party but it has not been clarified that despite there being sufficient number of police officials present at the spot how one of the miscreant managed to escape from dharamshala. It is a question which the prosecution has failed to give answer and that neither any step has been taken by the police to apprehend the said miscreant nor the police constables who chased the said accused were examined so as to establish the charge under section 402 i.e. assembly of five persons to commit dacoity. Even during investigation identity of said miscreant could not be established. There is nothing to show that why the accused persons who were apprehended at the spot were not intro gated about the identity of said miscreant. Considering entire facts this possibility can not be ruled out that the story regarding fleeing way of one of the miscreant was introduced with intention to bring the number of miscreants five as this figure was necessary to apply section 402 IPC Indian Kanoon Ruri vs State on 1 March 2021 15. It may also be seen that prosecution version is that when the police party heard conversation of alleged miscreants one of them was saying that let them wait for their companion Pahalwan and other stated that as the house of Changa khatik is outside of village they must go for committing dacoity and at the same time they apprehended the accused persons. There is nothing to show that except alleged bald talking the miscreants have taken any further step for the purpose of committing dacoity. Even there is no such version that the miscreants have started going for that purpose. Here it would be pertinent to mention that in the case of Shridhar Koeri Vs. State of Bihar 2001ACC 5 Hon ble Apex Court has held that the mere fact that the accused was arrested on the spot and some articles including fire arms were recovered from his possession would not be sufficient to prove the charge that he had assembled for making preparation for commission of 16. Another point is that alleged country made pistols and cartridges recovered from accused appellants were not sent to FSL for examination. Thus there is no evidence that alleged country made pistols shown recovered from accused appellants were in working order and the cartridges were alive. In case of State of Punjab Vs. Jagga Singh AIR 1998 SC 3113 Hon ble Supreme Court observed as under Though the evidence of PW 1 HC Baldev Singh and PW 3 Basant Singh establishes that the respondent was found in possession of one 12 bore DBBL gun and found live cartridges there is no satisfactory evidence to show that the said gun and the cartridges were sent for examination by the Central Forensic Scientific Laboratory. There is no report from the Forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working condition or that the said cartridges were live cartridges..... Therefore in absence of any evidence to show that the respondent was found in possession of one .12 bore DBBL gun in a working condition and four live cartridges the respondent cannot be convicted Thus the instant case is also affected on the ground that alleged country made pistols and cartridges recovered from accused appellants have not been sent to FSL and there is no such expert report or any other evidence that the said pistols were in working order 17. At this juncture it may be observed that prosecution version is that the miscreants have uttered that now they must go for committing dacoity and as they ready to go from the dharamshala the police officials apprehended the four appellants. There is absolutely no evidence that any of the appellant has offered any resistance. In the case of State of UP Vs. Punni 2008 Cr.L.J 1028the dacoits were arrested without any resistance or struggle and contents in the FIR that police had received information from an informer was not supported by the sub Inspector and the Hon ble Apex court held that the accused was entitled for acquittal. In the instant case too there is nothing to show that alleged miscreants have offered any resistance 18. It would also be relevant to mention that in first information report there was no such version that whether the police party has left the police station in any vehicle or by on foot however PW 1 has stated that they were on foot and it is the case of prosecution that the police party has left the police station at 09.15 PM and thereafter they visited three villages and that at around 11.15 PM they Indian Kanoon Ruri vs State on 1 March 2021 reached at the said dharamshala. As per first information report the distance of spot from police station has been shown three miles. It does not appear reliable that within a period of two hours they on foot visited three different villages and thereafter at 11.15 PM they reached at the alleged dharamshala. Further the alleged departure entry by which the said police party has left police station for patrolling has not been proved 19. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence the view which is favourable to the accused should be adopted.2 SCC 808 State of Rajasthan V. Raja Ram 4 SCC 415 Upendra Pradhan V. State of Orissa 11 SCC 124 and Golbar Hussain & Ors. V. State of Assam and Anr. 11 SCC 242]. In the instant case considering entire evidence it appears that prosecution version lacks genuineness and authenticity. The prosecution version appears unnatural as it is quite improbable that the said police officials could have heard any such conversation of appellants that they were saying that they would commit dacoity. Even otherwise mere alleged conversation hardly fulfils the necessary ingredients of offence under section 399 and 402 IPC. In attending facts and circumstances of the case it can also not be ruled out that storey that one of the miscreant has run away from spot might have been introduced to bring out the figure five so that the case may brought within the ambit of offence punishable under section 402 IPC. Further there is no evidence that alleged recovered pistols were in working order. Considering entire facts and evidence prosecution version appears doubtful and thus all the accused appellants are entitled for benefit of doubt 20. In view of above the conviction and sentence of accused appellants Ruri and Jagdish under section 399 402 IPC and section 25 Arms Act recorded by trial court is set aside and they are acquitted of the charges levelled against them. The appellants are on bail and thus no further order 21. Appeal is accordingly allowed 22. This court appreciates the assistance rendered by Ms Archana Singh learned Amicus Curiae and it is directed that she will be entitled for getting Rs 5000 from State Government as remuneration 23. Office to transmit the record of trial Court as well as copy of the judgement to the Court below Dated: 01.03.2021 AnandIndian Kanoon |
FIR quashed on the basis of suspicion: Bombay High Court | A fair reading of the FIR will demonstrate that, as far as the plaintiff is concerned, the charges are ambiguous, non-specific, and fail to reveal any of the elements of the above offences. The charges in the complaint that resulted in the filing of the FIR do not even reveal the ingredients of the suspected offences against the petitioner. This honourable judgement was passed In the High Court of Judicature at Bombay case of Naval Ashok Agarwal Vs the State of Maharashtra and Anr [CWP NO.146 OF 2021] by The Hon’ble S.S. SHINDE & MANISH PITALE. On or about 18.03.2020, respondent no.2 and her husband went to Mahabaleshwar to stay in respondent father’s bungalow wherein they had to stay for 4 months in lockdown because of covid-19. The mother of the petitioner informed him that the son of respondent No.2 had informed his father i.e., the petitioner’s brother about an alleged incident of sexual abuse by his grandfather. This led to a quarrel between both of the families, there were also attempts to settle the discord amicably, but eventually, that didn’t work out. The petitioner’s brother sent complaints to various police stations as also the Child Welfare Committee for registration of offences against the father of respondent No.2 under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”). Unfortunately, registration got delayed and the petitioner’s brother a filed writ petition in this court. On 31.08.2020 respondent No.2 caused an FIR to be registered at the Police Station Worli, Mumbai, against her husband i.e., petitioner’s brother, the petitioner himself and his mother under sections 498A, 344, 406, 504, 506 read with 34 of the IPC. The petitioner has prayed that this court ought to invoke its extraordinary power under Article 226 of the Constitution of India as also inherent power under Section 482 of the Code of Criminal Procedure (“Cr.P.C.”) to quash the FIR. The court observed “such generalized allegation made against the petitioner in the aforesaid complaint does not disclose ingredients of an offence under Section 498A of the IPC, which pertains to a woman being subjected to cruelty by her husband or relative. There is no doubt about the fact that the explanation to Section 498A of the IPC elaborately defines cruelty to mean and include any willful conduct which is of such a nature as is likely to cause grievous injury whether mental or physical to a woman. But the aforesaid general allegation levelled against the petitioner in the complaint lodged by respondent No.2 does not disclose the ingredients of the aforesaid offence under Section 498A of the IPC, insofar as the petitioner is concerned”. The court disposed of the case stating that, In the present case, “We are of the opinion that when the allegations made in the complaint leading to registration of the FIR do not even prima facie show the ingredients of the alleged offences against the petitioner, the petition deserves to be allowed.” | on 01 04 2021 on 01 04 1 21 08 Cri WP 146.21J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO.146 OF 2021Naval Ashok Agarwal R at 903A Lady Ratan Towers D.S. Road Gandhinagar Upper Worli Mumbai 400018.]]]] … PetitionerVersus1.The State of Maharashtra(Through Worli Police Station Mumbai.)]]]2.Riddhi Sagar Agarwal R at Venus Apartments ‘F’ Block FlatNo.58 R.G. Thadani Marg Worli Mumbai 400 018.]]]] … Respondents…Mr. I.M. Chagla senior counsel with Ms. Darius Khambata seniorcounsel with Mr. Jimmy Avasia Mr. Pranav Badheka i b DasturKalambi & Associates for the petitioner.Mr. J.P. Yagnik A.P.P. for respondent No.1 State.Mr. Satish Maneshinde i b Ms. Anandini Fernandes for respondentNo.2.…AJN on 01 04 2021 on 01 04 2 21 08 Cri WP 146.21J.odt CORAM: S.S. SHINDE & MANISH PITALE JJ. RESERVED ON : 12TH FEBRUARY 2021.PRONOUNCED ON: 01ST APRIL 2021.JUDGMENT: registered at the behest of respondent No.2(original complainant) his sister in law on the ground that theallegations made in the FIR do not make out ingredients of theoffences alleged at least insofar as the petitioner is concerned.2.Rule. Rule returnable forthwith. Heard finally with theconsent of the learned counsel for the parties.3.Shorn of unnecessary details the sequence of events leadingto filing of the present petition are that the petitioner’s brother gotmarried to respondent No.2 on 19.01.2014. On 14.04.2016 a sonwas born to them. The petitioner states in the petition that hegot married in the year 2013 and that he lives with his wife separate from his brother and respondent No.2. He used to meetrespondent No.2 occasionally at family get togethers and functionsAJN on 01 04 2021 on 01 04 3 21 08 Cri WP 146.21J.odtand that he has met parents of respondent No.2 on few occasionsduring such family functions.4.On or about 18.03.2020 respondent No.2 her husband i.e.petitioner’s brother and their son went to Mahabaleshwar to stay inthe bungalow of father of respondent No.2. The parents ofrespondent No.2 were also in Mahabaleshwar in the said bungalowand while all of them had gone to stay there for a short while dueto the Covid 19 pandemic and the consequent lockdowns all ofthem stayed at Mahabaleshwar for almost 4 months. On15.07.2020 the mother of the petitioner informed him that the sonof respondent No.2 had informed his father i.e. the petitioner’sbrother about an alleged incident of sexual abuse by his grandfatheri.e. the father of respondent No.2. This had led to a quarrelbetween respondent No.2 and petitioner’s brother and on16.07.2020 they returned with their son to Mumbai. In view of theserious allegation made against the father of respondent No.2 therewere attempts made to settle the discord.5.But things came to a head when on 27.07.2020 respondentNo.2 petitioner’s brother and mother went to the Police Station atWorli Mumbai. The petitioner also reached the said police station.The petitioner’s brother proceeded to lodge a complaint in thepolice station against his father in law for having allegedly sexuallyabused his grandchild while respondent No.2 in another room inAJN on 01 04 2021 on 01 04 4 21 08 Cri WP 146.21J.odtthe police station lodged a complaint against the petitioner’sbrother and mother. But before the complaints could be fullyrecorded a police officer on duty intervened and suggested thatsince it was a family dispute the same ought to be amicably settled.Thereafter the parties returned home. According to the petitioner this was the first occasion after respondent No.2 had returned fromMahabaleshwar that the petitioner had met her.6.It appears that there were attempts made to amicably settlethe dispute and that on 31.07.2020 the parties had met for findinga solution. According to the petitioner an agreement was reachedand the father of respondent No.2 was supposed to give certainstatement in writing but eventually the same did not work out.Thereafter attempts were made to take the son of respondent No.2to a child psychologist and when the acrimony between respondentNo.2 and her husband i.e. the petitioner’s brother increased further eventually on 25 26.08.2020 the petitioner’s brother sentcomplaints to various police stations as also the Child WelfareCommittee for registration of offences against the father ofrespondent No.2 under the Protection of Children from SexualOffences Act 2012J.odtpetitioner’s brother filed a writ petition before this Court in whichon 28.08.2020 notice was issued. It is an admitted position thatthe petitioner’s brother is an advocate.7.Thereafter on 29.08.2020 statement of petitioner’s brotherwas recorded and an FIR bearing C.R. No. 115 2020 was registeredunder Section 377 of the Indian Penal Codeand Sections 4and 5 of the POCSO Act at the Cuff Parade Police Station Mumbai against the father of respondent No.2. On 31.08.2020respondent No.2 caused an FIR to be registered at the PoliceStation Worli Mumbai against her husband i.e. petitioner’sbrother the petitioner himself and his mother under sections 498A 344 406 504 506 read with 34 of the IPC. This FIR is the subjectmatter of the present writ petition wherein the petitioner hasprayed that this court ought to invoke its extraordinary power underArticle 226 of the Constitution of India as also inherent powerunder Section 482 of the Code of Criminal Proceduretoquash the FIR at least insofar as the petitioner is concerned.8.According to the petitioner a bare reading of the FIR andcontents of the complaint lodged by respondent No.2 would showthat insofar as the petitioner is concerned the allegations are vague non specific and they do not disclose any of the ingredients of theaforesaid offences. By placing reliance upon settled position of lawpertaining to the situations in which this court can exercise itsAJN on 01 04 2021 on 01 04 6 21 08 Cri WP 146.21J.odtpower to quash an FIR the petitioner contends that the presentpetition deserves to be allowed. It is also brought to the notice ofthis court that in a separate proceeding the petitioner has beengranted anticipatory bail.9.When this petition was listed on 22.01.2021 learned counselappearing for respondent No.2 sought time to file reply. Whilegranting time for filing reply this Court directed that in casecharge sheet was not filed the same would not be filed till the nextdate of hearing without seeking leave of this Court. The petitionwas finally heard on 12.02.2021 and judgment was reserved. Thead interim order passed by this Court was directed to be continuedtill pronouncement of judgment however it was clarified that therewas no stay to investigation into the matter.10.Mr. I.M. Chagla learned senior counsel appearing for thepetitioner alongwith Mr. Darius Khambata senior counsel submitted that the FIR in question deserved to be quashed at leastinsofar as the petitioner was concerned. Learned senior counselread the contents of the FIR and submitted that none of theingredients of the alleged offences were made out against thepetitioner. It was submitted that respondent No.2 had made vagueand non specific allegations against the petitioner while the thrustof her anger and grievance was against the brother of the petitioneri.e. her husband. The genesis of the dispute between theAJN on 01 04 2021 on 01 04 7 21 08 Cri WP 146.21J.odtpetitioner’s brother and respondent No.2 was the matrimonialdiscord between them precipitated in a large measure due to thealleged incident that took place concerning the father of respondentNo.2 and the son of the petitioner’s brother and respondent No.2.It was submitted that the petitioner had nothing to do with eitherthe said incident or the cascading effect that it had on thematrimonial relations between respondent No.2 and petitioner’sbrother. 11.It was reiterated that the petitioner lives separately from hisbrother and respondent No.2 that he had met respondent No.2and her parents occasionally on family functions that the relationsbetween the petitioner and respondent No.2 had been cordial withno reason for any dispute and that the vague and non specificallegations made in the FIR were for the reason that respondentNo.2 sought to include the petitioner along with his brother in thefocus of her ire caused by the matrimonial discord. Learned seniorcounsel also brought to the notice of this Court an earlier allegedwritten complaint dated 13.08.2020 submitted before the police byrespondent No.2. It was submitted that a bare reading of the saiddetailed written complaint also demonstrated that no specificallegations were levelled against the petitioner and in fact therewere contradictions between the said written complaint dated13.08.2020 and the oral complaint leading to registration of theaforesaid FIR dated 31.08.2020. It was submitted that since theAJN on 01 04 2021 on 01 04 8 21 08 Cri WP 146.21J.odtvague allegations made against the petitioner did not demonstrateany of the ingredients of the offences alleged the FIR deserved tobe quashed so as to relieve the petitioner from the harassment andembarrassment of facing an unnecessary trial. Learned seniorcounsel relied upon judgments of the Hon’ble Supreme Court inthe case of Geeta Mehrotra Vs. State of U.P. 1 and Keki HormusjiGharda Vs. Mehervan Rustomji Irani 2 as also judgments of thisCourt in the case of Shabnam Sheikh Vs. State 3 and Anand L.Kalwani Vs. State4.12.On the other hand Mr. Satish Maneshinde learned counselappearing for respondent No.2 submitted that a reading of thecomplaint and the FIR demonstrated that the offences werejustifiably registered against all the accused including the petitionerbefore this Court. It was submitted that the FIR was not supposedto be an encyclopedia of the events and that the contents of thecomplaint and FIR in the present case were sufficient to trigger aninvestigation into the matter against the petitioner. It was submittedthat such an FIR did warrant a detailed investigation and thattherefore the petition ought not to be entertained by this Court.The FIR did not deserve to be nipped in the bud insofar as thepetitioner was concerned because investigation into the matterwould bring out sufficient material for levelling charges against the1(2012) 10 SCC 7412(2009) 6 SCC 4753Judgment and Order dated 15 10 2020 in Cri. Application No.11144Judgment and Order dated 04 05 2005 in Cri. Writ Petition No.6005AJN on 01 04 2021 on 01 04 9 21 08 Cri WP 146.21J.odtpetitioner along with the other accused persons and that the matterdeserved to go to trial. It was emphasized that there were as manyas 17 litigations pending between the petitioner’s brother andrespondent No.2 and that much acrimony had been generatedbetween the parties.13.The learned counsel submitted that this Court ought to lookinto the written complaint dated 13.08.2020 along with thecomplaint and FIR registered on 31.08.2020 to consider thecontentions raised on behalf of the petitioner. It was submitted thatthe husband of respondent No.2 i.e. the petitioner’s brother is anadvocate and that the entire family of the petitioner is using itsknowledge of law and its familiarity with the court system topressurize respondent No.2 and her parents into submission whichwas a factor this Court needs to consider while deciding the presentwrit petition. According to learned counsel appearing forrespondent No.2 any interference at this stage at the hands of thisCourt would not be in the interest of justice and that theinvestigation ought to be permitted to be completed.14.Mr. Yagnik learned A.P.P. appeared on behalf of therespondent State and submitted copy of the investigation papers toindicate the investigation carried out till date on the basis of theaforesaid FIR.AJN on 01 04 2021 on 01 04 10 21 08 Cri WP 146.21J.odt15.Before we consider the contentions raised on behalf of therival parties it is relevant to note that this Court never granted stayof investigation into the aforesaid FIR registered at the behest ofrespondent No.2. By order dated 22.01.2021 this Court had onlydirected that charge sheet qua the petitioner may not be filed tillthe next date of hearing. The investigation papers show that theinvestigation has not progressed significantly. Learned counsel forrespondent No.2 did submit before this court that the investigationremained dormant at the behest of respondent No.2 for some timebecause attempts were being made to bring about an amicablesettlement between the parties considering that as many as 17litigations are pending the root cause of which is the matrimonialdiscord between respondent No.2 and the petitioner’s brother which is embroiled in acrimony following the nature of allegationlevelled by the petitioner’s brother against the father of respondentNo.2. Therefore we find that the investigation has progressed at avery slow pace if at all.16.Be that as it may we are considering this writ petition on thebasis of the material that has been brought to our notice and byapplying the settled position of law concerning quashing of theFIR. In order to examine as to whether the said FIR deserves to bequashed thereby aborting investigation and further steps insofar asthe petitioner before the court is concerned it becomes necessary toread the FIR in detail so as to analyze as to whether ingredients ofAJN on 01 04 2021 on 01 04 11 21 08 Cri WP 146.21J.odtthe alleged offences against the accused who has approached thiscourt are even prima facie made out. In the present case by thevery nature of statements made in the complaint leading toregistration of FIR the cognizable offences alleged against thepetitioner are under Sections 406 498A and 344 of the IPC. Theoffence under Section 406 of the IPC on the face of it is notrelatable to the petitioner as the allegations in respect thereof are allmade against the brother of the petitioner. The offences underSections 504 and 506 of the IPC are non cognizable. Section 498Aof the IPC pertains to subjecting a woman to cruelty either mentalor physical the term “cruelty” being specifically defined in the saidprovision. Section 344 of the IPC pertains to wrongful confinementfor 10 or more days with wrongful confinement being defined inSection 340 of the IPC.17.A perusal of the complaint and the FIR dated 31.08.2020shows that the petitioner has been specifically named at two places.In one place it is stated that the petitioner used to come repeatedlyto the house of respondent No.2 to keep an eye on her and he wasnot allowing respondent No.2 to meet members of her family. Atanother place the petitioner has been named along with his brotherand mother to state generally that from the date of marriage ofrespondent No.2 on 19.01.2014 the said persons till date hadrepeatedly asked respondent No.2 to bring money from her father that they used to taunt her abuse and threaten her thereby causingAJN on 01 04 2021 on 01 04 12 21 08 Cri WP 146.21J.odtmental harassment to her.18.Insofar as the allegations levelled against the petitioner alongwith his brother and mother pertaining to harassment meted out torespondent No.2 from the date of her marriage are concerned thesaid allegations are generalized non specific and in any case nospecific allegation has been levelled against the petitioner. In fact the name of the petitioner is mentioned in this context withomnibus statement regarding alleged mental harassment caused torespondent No.2. This has to be appreciated in the backdrop thatwhen there is matrimonial discord and acrimony between husbandand wife there is a tendency to vent out anger against the husbandby roping in as many relatives of the husband as possible. Thetendency appears to be to get back at the husband by makingallegations against all family members so that the consequentcriminal proceedings disturb the life of not only the husband but allhis family members and relatives.19.It is for this reason that Courts have to carefully analyze thestatement of the informant to verify as to whether plausibleallegations have been made out against specific persons sought tobe arraigned as accused so that persons against whom general vague and non specific allegations are made are not forced to facethe rigors of investigation charges and consequent trial. It isincumbent upon the Court to ensure that a person is not casuallyAJN on 01 04 2021 on 01 04 13 21 08 Cri WP 146.21J.odtmade to face such rigors when the genesis of the grievance of theinformant is an acrimonious matrimonial discord which essentiallyis between the husband and wife. Although an FIR can certainlynot be an encyclopedia of facts and events leading up to the FIR inmatters where such allegations are sought to be made against theentire family of the husband the court needs to adopt an approachthat would not only take care of the genuine grievances of the wife but also of relatives of the husband who are sought to be roped inand swallowed into the vortex of the dispute between the husbandand wife.20.In such situations factors like the relatives of the husband notliving in the matrimonial house the complainant not stating in thecomplaint that such relatives stay in the matrimonial house or evenabout any day to day contact and interaction with such relatives become very relevant. There need to be specific allegations anddescription of events in such complaints which have their genesis ina matrimonial discord to indicate that at least insofar as suchrelatives of the husband are concerned the investigation needs toproceed. In situations where general vague and non specificallegations are made and basic ingredients of the alleged offencesare not made out the FIR can be quashed insofar as such accusedrelatives of the husband are concerned. In this context learnedsenior counsel appearing for the petitioner is justified in relying onparagraph 20 of the judgment of the Hon’ble Supreme Court in theAJN on 01 04 2021 on 01 04 14 21 08 Cri WP 146.21J.odtcase of Geeta Mehrotraand paragraph 14 of the judgmentof this Court in the case of Shabnam SheikhJ.odtprevented from proceeding beyond certain circumscribing limits.This would require the person being prevented to proceed beyondsuch limits. Illustrations appended to Section 340 of the IPC makeit very clear that the accused must necessarily by his actions demonstrate the intent of preventing the person from proceedingbeyond certain circumscribing limits. It is only in suchcircumstances that the ingredients of the offense of wrongfulconfinement can be said to be made out. Section 344 of the IPCpertains to wrongful confinement for 10 or more days therebyindicating that there must be material to even prima facie show thatsuch wrongful confinement continued for 10 or more days.23.In this context learned senior counsel appearing for thepetitioner has relied upon judgment of the Hon’ble Supreme Courtin the case of Keki Hormusji Gharda2 Bom. C.R. 720AJN on 01 04 2021 on 01 04 16 21 08 Cri WP 146.21J.odtso.24.In the present case the specific allegation made against thepetitioner in the complaint and the FIR dated 31.08.2020 is thatthe petitioner allegedly used to repeatedly visit the house ofrespondent No.2 to keep an eye on her and he allegedly preventedher from meeting her family members. Such a general allegationdoes not even prima facie show the ingredients of the offence underSection 344 of the IPC on the touchstone of definition of wrongfulconfinement as given in Section 340 thereof. We are of the opinionthat such an allegation does not even prima facie indicate thealleged wrongful confinement of respondent No.2 for 10 or moredays for the matter to proceed further against the petitioner.25.Insofar as offence under Section 498A of the IPC isconcerned the petitioner has been named towards the end of thecomplaint leading to registration of the FIR wherein general omnibus and non specific allegations have been made. Thepetitioner has been named along with his brother and mother forhaving caused mental harassment to respondent No.2 by claimingthat from the date of her marriage with the petitioner’s brother there were demands made for money from her father and that shewas subjected to threats and abuses. We are of the opinion that thethrust of the allegations in the complaint leading to registration ofthe FIR are not against the petitioner and he has been named in theAJN on 01 04 2021 on 01 04 17 21 08 Cri WP 146.21J.odtcontext of general statements and allegations levelled by respondentNo.2. As noted above in such cases there is a pronouncedtendency on the part of the complainant to rope in relatives of thehusband due to the anger generated in the complainant against herhusband in the backdrop of acrimony and bitterness in theirmatrimonial life. We are the opinion that such generalizedallegation made against the petitioner in the aforesaid complaintdoes not disclose ingredients of offence under Section 498A of theIPC which pertains to a woman being subjected to cruelty by herhusband or relative. There is no doubt about the fact that theexplanation to Section 498A of the IPC elaborately defines crueltyto mean and include any willful conduct which is of such a natureas is likely to cause grievous injury whether mental or physical to awoman. But the aforesaid general allegation levelled against thepetitioner in the complaint lodged by respondent No.2 does notdisclose the ingredients of the aforesaid offence under Section498A of the IPC insofar as the petitioner is concerned.26.A perusal of even the written complaint dated 13.08.2020allegedly submitted by respondent No. 2 before the police does notshow any specific allegations against the petitioner. We are referringto the said written complaint because learned counsel appearing forrespondent No.2 specifically relied upon the same. In fact the saidwritten complaint runs into a number of pages wherein respondentNo.2 has sought to state the situations she faced after marriage withAJN on 01 04 2021 on 01 04 18 21 08 Cri WP 146.21J.odtthe petitioner’s brother but in such a detailed complaint there is nospecific allegation against the petitioner. In fact the allegationabout the petitioner having allegedly kept an eye on respondentNo.2 preventing her from meeting her relatives is conspicuous byits absence. Such an allegation being made against the petitioner inthe oral complaint leading to registration of the FIR dated31.08.2020 comes through as an afterthought. Therefore theemphasis placed on the said written complaint dated 13.08.2020 by learned counsel for respondent No.2 does not take the case ofthe said respondent any further. In this context learned seniorcounsel appearing for the petitioner is justified in relying upon thejudgment of this Court in the case of Anand KalwaniSupp. 1 SCC 335AJN on 01 04 2021 on 01 04 19 21 08 Cri WP 146.21J.odtwherein such power could be exercised either to preventabuse of the process of any Court or otherwise to securethe ends of justice though it may not be possible to laydown any precise clearly defined and sufficientlychannelised and inflexible guidelines or rigid formulaeand to give an exhaustive list of myriad kinds of caseswherein such power should be exercised.1. Where the allegations made in the FirstInformation Report or the complaint even if theyare taken at their face value and accepted in theirentirety do not prima facie constitute any offenceor make out a case against the accused.2. Where the allegations in the First InformationReport and other materials if any accompanyingthe F.I.R. do not disclose a cognizable offence justifying an investigation by police officers underSection 156(1) of the Code except under an orderof a Magistrate within the purview of Section155(2) of the Code.3. Where the uncontroverted allegations made in theFIR or complaint and the evidence collected insupport of the same do not disclose the commissionof any offence and make out a case against theaccused.4.Where the allegations in the F.I.R. do notconstitute a cognizable offence but constitute onlya non cognizable offence no investigation ispermitted by a police officer without an order of aMagistrate as contemplated under Section 155(2)of the Code.5. Where the allegations made in the FIR orAJN on 01 04 2021 on 01 04 20 21 08 Cri WP 146.21J.odtcomplaint are so absurd and inherently improbableon the basis of which no prudent person can everreach a just conclusion that there is sufficientground for proceeding against the accused.6. Where there is an express legal bar engrafted in anyof the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) tothe institution and continuance of the proceedingsand or where there is a specific provision in theCode or the concerned Act providing efficaciousredress for the grievance of the aggrieved party.7. Where a criminal proceeding is manifestly attendedwith mala fide and or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a viewto spite him due to private and personal grudge.”28.In the present case we are of the opinion that the case of thepetitioner clearly falls in Categories 1 and 2 as laid down in theabove quoted portion of the judgment of the Supreme Court.Therefore power under Section 482 of the Cr.P.C. and Article 226of the Constitution of India deserves to be exercised in favour ofthe petitioner. We are of the opinion that when the allegationsmade in the complaint leading to registration of the FIR do noteven prima facie show the ingredients of the alleged offencesagainst the petitioner the petition deserves to be allowed.29.In view of the above the writ petition is allowed in terms ofAJN on 01 04 2021 on 01 04 21 21 08 Cri WP 146.21J.odtprayer clausewhich reads as follows:“(a)that this Hon’ble Court be pleased to call for therecords and proceedings in the said FIR bearingno.C.R.306 2020 dated 31 8 2020and issue an appropriate Writ order ordirection to quash and set aside the said FIR bearingno. C.R. 306 2020 registered with the WorliPolice Station Mumbai under section 498 A 344 406 504 506 and 34 of the IPC qua the Petitionerand all further proceedings arising therefrom.” 30.As is clear from the above quoted prayer clause in terms ofwhich the present writ petition stands allowed the said FIR standsquashed only in respect of the petitioner before this court. We makeit clear that observations made hereinabove are strictly confined tothe present petition and will have no bearing on any proceedings inrespect of other accused.31.Rule is made absolute in above terms. The writ petition isdisposed accordingly. (S.S. SHINDE J.)AJN |
Financial bank guarantee can be invoked after the imposition of a moratorium: NCLAT | Invocation of a bank guarantee during a moratorium period imposed under Section 14 of the Insolvency and Bankruptcy Code 2016. The judgment passed by the NCLAT New Delhi (principle bench), in its decision in Bharat Aluminium Co Ltd v JP Engineers Pvt Ltd (COMPANY APPEAL (AT)(INSOLVENCY) NO.759 OF 2020) by Hon’ble shri Justice Jarat Kumar Jain The facts of the case was such that – Bharat Aluminum went into a concurrence with JP Engineers for the deal and acquisition of aluminum items, the installments for which were ensured by Andhra Bank (which has since converged with the Union Bank of India). Meanwhile, an application to start the corporate indebtedness goal interaction of JP Engineers was conceded, bringing about the inconvenience of a moratorium under Section 14 of the IBC. At the point when JP Engineers defaulted on its installments under the arrangement, Bharat Aluminum conjured the bank ensure. Notwithstanding, Andhra Bank opposed the conjuring in light of the fact that a bank assurance couldn’t be summoned due to the IBC moratorium. Consequently, Bharat Aluminum documented an application before the mediating authority of JP Engineers’ corporate indebtedness goal measure (the National Company Law Tribunal (NCLT)) for the summon of the bank ensure. Andhra Bank documented an application before the NCLT to oppose the summon of the bank ensure. The NCLT conceded Andhra Bank’s application considering the IBC moratorium, along these lines guiding Bharat Aluminum to request no summon or arrival of the bank ensure. Bharat Aluminum documented an allure before the NCLAT. Learned Counsel for the Appellant presented that conjoined perusing of the stipulation to Section 3 (31) and Section 14 of the IBC explicitly prohibits execution bank ensures from the ambit of moratorium under Section 14 of the IBC and that a similar thinking would apply to the bank ensure. Execution bank ensure isn’t characterized in the IBC in any case, Regulation 36(B) of the IBBI Regulations (Insolvency Resolution Process for Corporate Persons) Regulations 2016, manages the exhibition bank ensures whereby it tends to be seen that the presentation ensure is money related in nature and hence, the thinking behind barring an exhibition bank assurance can decisively be applied to bank ensures also. IBC being a special law prevails on the Indian Contract Act, 1872 which happens to be general law. Thus, the guarantee in question being a bank guarantee will be hit by moratorium under Section 14 of the IBC. It is additionally presented that there is a distinction between the presentation bank ensure and monetary bank ensure. Along these lines, the expectation of the assembly in cutting out a special case for the presentation bank ensure just is restricted for barring just the exhibition bank ensure from the ambit of moratorium under Section 14 of the IBC. The Bank ensure being referred to is a security premium of the Corporate Debtor. Consequently, encashing the equivalent would disregard the arrangements of Section 14 of the IBC and further would disappoint the Corporate Insolvency Resolution Process. The NCLAT held that the NCLT had not considered a retrospective amendment made to Section 14 of the IBC prior to the passing of its order and had wrongly relied on orders passed before the amendment, and observed that- | NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEALNO.759 OF 2020 IN THE MATTER OF: BHARAT ALUMINIUM CO. LTD Aluminium Sadan Core 6 Scope Office Complex 7 Lodhi Road New Delhi 110003 Vs. 1. M S J.P. ENGINEERS PVT LTD. Through Mr. Sumit Bansal Interim Resolution Professional 3 8 2nd Floor Asaf Ali Road New Delhi 110002. 2. ANDHRA BANK Now Merged with Union Bank) Green Park Branch Branch Code: 0000162) R 3 Main Market Green Park New Delhi 110016 PRESENT: …Respondent No. 1 ... Respondent No. 2. For Appellant: Ms Ranjana Roy Gawai Ms Ananya Chug and Ms Vasudha Sen Advocates For Respondent: Mr. Abhishek Garg Advocate for R1. Mr. PBA Srinivasan MR AvinashMohapatra Mr IchchhaKailash Advocates for R2. JUDGMENT Jarat Kumar Jain. J: The Appellant ‘Bharat Aluminium Company Limited’ filed this Appeal against the order dated 31.07.2020 passed by the Adjudicating Authority National Company Law Tribunal) New Delhi Bench No. II. Whereby dismissed the Appellant’s Application I.A. No. 2085 ND 2020 and allowed the Respondent No. 2’sApplication I.A. No. 2572 ND 2020 and directed the COMPANY APPEALNO.759 OF 2020 2 Appellant not to demand the release of bank guarantee amount from the Respondent No. 2 in view of the moratorium under Section 14 of the Insolvency and Bankruptcy Code 2016 against the ‘M s J.P. Engineers Private Limited.’Respondent No. 1. Brief facts of this case are that the Operational Creditor ‘M s Worldwide Metals Pvt. Ltd.’ filed Company Petition No. IB 1048 ND 2019 under Section 9 of the IBC for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor ‘M s J.P. Engineers Pvt. Ltd.’ The Application was admitted by the Adjudicating Authority vide order dated 26.02.2020 and Mr. Sumit Bansal was appointed as an Interim Resolution ProfessionalNO.759 OF 2020 3 Respondent No. 2 seeking encashment of bank guarantee dated 22.04.2019 in favour of the Appellant. The Respondent No. 2 vide its reply dated 27.03.2020 refused to allow the invocation of the bank guarantee on the ground of enforcement of moratorium under Section 14 of the IBC against the Respondent No. 1. The Appellant ‘Bharat Aluminium Ltd.’ filed an application I.A. No. 2085 ND 2020 before the Adjudicating Authority for the following relief: a) Declare that the invocation encashment of bank guarantee No. 016219 GPR0021dated 22.04.2019 is not covered by Moratorium under Section 14 of the IBC. b) Consequently direct the respondent bank to encash the bank c) Pass any other order as this Hon’ble Tribunal may deem fit. The Respondent No. 2 filed an application IA No. 2572 ND 2020 before the Adjudicating Authority for the following relief: a) Direct the Appellant not to invoke the bank guarantee in view of Section 14 of the IBC imposed on the Respondent No. 1 i.e Corporate Debtor b) Direct the Appellant not to demand the release of bank guarantee amount from the bank in view of section 14 of the IBC c) Pass any order as this Hon’ble Tribunal may deem fit in the interest of justice. Learned Adjudicating Authority by the impugned common order dismissed the Appellant’s application whereas allowed the Respondent No. 2’s application with the direction to the Appellant not to demand the release of bank guarantee amount from the Respondent No. 2 bank in view of the moratorium declared under section 14 of the IBC2016 in relation to the Corporate Debtor. Being aggrieved with the impugned order the Appeal has been filed. COMPANY APPEALNO.759 OF 2020 4 Learned Counsel for the Appellant submitted that conjoined reading of the proviso to Section 3and Section 14 of the IBC specifically excludes performance bank guarantees from the ambit of moratorium under Section 14 of the IBC and that the same reasoning would apply to the bank guarantee. Performance bank guarantee is not defined in the IBC however Regulation 36(B) of the IBBI RegulationsRegulations 2016 deals with the performance bank guarantees whereby it can be seen that the performance guarantee is monetary in nature and therefore the reasoning behind excluding a performance bank guarantee can squarely be applied to bank guarantees as It is further submitted that Section 14(3)of the IBC provides that Moratorium will not be applicable ‘to a surety in a contract of guarantee to a Corporate Debtor’. Therefore the Respondent No. 2 bank cannot take advantage of the moratorium that has been imposed upon the assets of the Corporate Debtor. For this purpose placed reliance on the judgement of Hon’ble Supreme Court in the Case of SBI Vs. V. Rama Krishnan & Ors. 2018) 17 SCC 394. It is also submitted that the legislative intend behind Section 14 of the IBC is only to secure the Assets of the Corporate Debtor and the benefit of moratorium ought not to be extended to third parties i.e. surety for this purpose placed reliance on the Para 5.10 and 5.11 of Report of Insolvency Law Committee March 2018 which specifies that encashment of bank guarantee would not have a significant impact on the debt of the corporate COMPANY APPEALNO.759 OF 2020 5 debtor as the right of the creditor against the corporate debtor is merely sifted to the respondent no. 2 bank to the extent of payment by the bank. It is submitted that the Adjudicating Authority has failed to deal with the decision of this Appellate Tribunal in the case of GAIL India Ltd. Vs. Rajeev Manandiar & Ors. SCC Online NCLAT 374 which is relied upon by the Appellant. 12. Learned Counsel for the Appellant submitted that Hon’ble Supreme Court in the case of UP State Sugar Corporations Vs. Sumac International Ltd. in Civil Appeal No. 153596 held that whenever irrevocable and unconditional bank guarantee sought to be encashed by the beneficiary bank is bound to honour the guarantee irrespective of any dispute raised by the customeragainst the beneficiary. Hon’ble Andhra Pradesh High Court in the case of Haryana Telecom Ltd. Vs. Aluminium industries Ltd.SCC Online AP 721 held that the bank guarantee cannot be said to be the property of the Corporate Debtor simply because it is indirectly going to be affected by enforcement of the said bank guarantee by the beneficiary. 13. Learned Counsel for the Appellant submitted that the Adjudicating Authority has erred in placing reliance on the decision of the Adjudicating Authority in Nitin Hashmukh Lal Parikh Vs. Madhya Gujrat Vij Company Ltd. &Ors. This decision is rendered by the Allahabad Bench on 09.02.2018 i.e. prior to substitution of sub Section 3(b) of Section 14 of the IBC. After amendment Principal Bench of the Tribunal in M s. Levcon ValvesLtd. v. Energo Engineering Projects Limited in CPCOMPANY APPEALNO.759 OF 2020 6 No. 160(ND) of 2017 dated 24.08.2018 and 28.09.2018 and Gudearth Homes Infracon Pvt. Ltd. And Others v. Veebro Technoplast Pvt. Ltd. in CA No. 580of 2017 in CPNo. 159of 2017 order dated 06.09.2018 held that invocation of bank guarantee during moratorium is specifically aside. In such circumstances even after commencement of the moratorium the bank guarantee can be encashed and the Respondent No. 2 bank is liable to pay the money in its capacity as a surety of the Respondent No. 1. Thus the impugned order is not sustainable in law and is liable to be set 15. Learned Counsel for the Respondent No. 1 has not filed any Reply Affidavit since the issue in regard to bank guarantee is between the Appellant and Respondent No. 2. 16. Learned Counsel for the Respondent No. 2 submitted that the guarantee in question is a bank guarantee and not a performance guarantee as held by Ld. Adjudicating Authority. The bank guarantee is covered by the moratorium under Section 14 of the IBC thus enforcing such security interest during the moratorium period would violate the Section 14 of the IBC. The provisions of Section 3(31) of the IBC makes it clears that the guarantee in question falls under the ambit of “any other agreement or arrangement securing payment or performance of any obligation of any person”. This Appellate Tribunal in the case of State Bank of India Vs. Debashish Nanda CA(Ins) No. 418 held that Financial Creditor cannot debit any amount from the Corporate Debtor accounts after the COMPANY APPEALNO.759 OF 2020 7 order of moratorium as it may amount to recovery in violation of the Section 14 of the IBC. This Appellate Tribunal in the case of Indian Overseas Bank Vs. Mr. Dinker T Venkatsubramaniam Resolution Professional for Amtek Auto Ltd. (Ins) No. 267 of 2017) held that once moratorium has been declared it is not open to any person including Financial Creditor to recover any amount from the account of the Corporate Debtor. For the same preposition Learned Counsel for the Respondent No. 2 drew our attention towards the Judgment of this Appellate Tribunal in the case of IRP of Ruchi Soya Industry Ltd. Vs. ICICI Bank Ltd. MA No. 84 of 2018 in CP No. 1371 1372(MB) 2017. It is also submitted that IBC being a special law prevails on the Indian Contract Act 1872 which happens to be general law. Thus the guarantee in question being a bank guarantee will be hit by moratorium under Section 14 of the IBC. It is also submitted that there is difference between the performance bank guarantee and financial bank guarantee. Thus the intention of the legislature in carving out an exception for the performance bank guarantee only is limited for excluding only the performance bank guarantee from the ambit of moratorium under Section 14 of the IBC. The Bank guarantee in question is a security interest of the Corporate Debtor. Thus encashing the same would violate the provisions of Section 14 of the IBC and further would frustrate the Corporate Insolvency Resolution Process. It is also submitted that the bank guarantee in question is an independent contract between the Appellant and Respondent No. 2 bank COMPANY APPEALNO.759 OF 2020 8 then the Adjudicating Authority had no jurisdiction to entertain the Appellant’s application. The Second amendment of Section 14(3)has no bearing on the Appellant’s case. Thus there is no ground to interfere in the impugned order. The Appeal is liable to be dismissed. 20. After hearing Learned Counsel for the parties we have perused the record and relevant provisions of IBC. 21. Admittedly the Appellant had entered into an agreement for sale and purchase of aluminium products for the period 01.04.2019 to 31.03.2020 with J.P. Engineering’s of the IBC because a bank guarantee cannot be described as performance bank guarantee. The bank COMPANY APPEALNO.759 OF 2020 9 guarantee falls within the purview of the definition of ‘security interest’ as defined under section 3(31) of the IBC. Therefore during the moratorium the bank guarantee cannot be invoked as the same may be prohibited under Section 14(1)of the IBC. 25. Ld. Adjudicating Authority while giving the aforesaid finding placed reliance on the judgment of NCLT Ahmadabad Bench passed in the matter of Nitin Hashkhmukh Lal Parikh Ltd. vs. Madhya Gujarat Vis Company Ltd. & Ors. Wherein ‘it is held that moratorium order passed by the Tribunal applies in respect of bank guarantees other than performance bank guarantees furnished by the Corporate Debtor in respect of its property since it comes within the meaning of security interest’. Therefore Financial Operational Creditor is not entitled to invoke bank guarantees other than that comes within the purview of performance guarantee during moratorium period. Ahmadabad Tribunal delivered this order on 09.02.2018 whereas with retrospective effect from 06.06.2018 Sub Section 3 of Section 14 of the IBC has been substituted therefore in this Order amended provision has not been considered. 26. Sub Section 3 of Section 14 of the IBC substituted by the Insolvency and Bankruptcy Code second Amendment) Act 26 of 2018 with retrospective effect from 06.06.2018 it reads as under: In section 14 of the principal Act for sub section the following sub section shall be substituted namely:— 3) The provisions of sub sectionshall not apply to— a) such transaction as may be notified by the Central Government in consultation with any financial regulator COMPANY APPEALNO.759 OF 2020 10 b) a surety in a contract of guarantee to a corporate debtor." 27. We noted that Ld. Adjudicating authority in the impugned order has not considered the aforesaid amendment. 28. Learned Counsel for the Respondent No. 2 cited following orders: 1) Indian Overseas Bank Vs. Mr. Dinker T Venkatsubramaniam NCLAT decided on 15.11.2017 2) Nitin Hashkhmukh Lal Parikh Ltd. vs. Madhya Gujarat Vis Company Ltd. & Ors. NCLT Ahmadabad Bench decided on 09.02.2018 3) IRP of Ruchi Soya Industry Ltd. Vs. ICICI Bank Ltd. NCLT Mumbai Bench decided on 05.06.2018 29. Aforesaid orders have been passed before the amendment therefore these citations are not helpful to the Respondent No. 2. 30. After substitution of Sub Section 3(b) the provision of Section 14(1) of the IBC shall not apply to surety in the contract of guarantee to a Corporate 31. This amendment has been made on the recommendation of Report of Insolvency Law Committee March 2018. In para 5.10 & 5.11 of the Report of Insolvency Law Committee specifies that the assets of the surety are separate from those of the Corporate Debtor and proceedings against the Corporate Debtor may not be seriously impacted by the actions against the assets of third parties like sureties. In Para 5.11 of the Report of Insolvency Law Committee concluded that Section 14 of the IBC does not intend to bar actions against assets of guarantors to the debts of the Corporate Debtor and recommended that explanation to clarify this may be inserted in Section 14 of the IBC. The scope of moratorium may be restricted to the assets to COMPANY APPEALNO.759 OF 2020 11 the Corporate Debtor only. Pursuant to this Report Legislation has substituted Sub Section 3(b) of Section 14 by Insolvency and Bankruptcy Code Act 218. The effect of the amendment has been considered by the Hon’ble Supreme Court in the Case of SBI Vs. V. Ramakrishnan & Ors. 17 SCC 394 read as under: 30. We now come to the argument that the amendment of 2018 which makes it clear that Section 14(3) is now substituted to read that the provisions of sub sectionof Section 14 shall not apply to a surety in a contract of guarantee for corporate debtor. The amended Section reads as follows: “14. Moratorium. —(1)xxx xxxxxx 3) The provisions of sub sectionshall not apply to— a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator b) a surety in a contract of guarantee to a corporate debtor.” 31. The Insolvency Law Committee appointed by the Ministry of Corporate Affairs by its Report dated 26.03.2018 made certain key recommendations one of which was: “(iv) to clear the confusion regarding treatment of assets of guarantors of the corporate debtor vis à vis the moratorium on the assets of the corporate debtor it has been recommended to clarify by way of an explanation that all assets of such guarantors to the corporate debtor shall be outside scope of moratorium imposed under the Code ” 32.The Committee insofar as the moratorium under Section 14 is concerned went on to find: “5.5 Section 14 provides for a moratorium or a stay on institution or continuation of proceeding suits etc. against the corporate debtor and its assets. There have been contradicting views on the scope of moratorium regarding its application to third parties affected by the debt of the corporate debtor like guarantors or sureties. While some courts have taken the view that Section 14 may be interpreted literally to mean that it only restricts actions against the assets of the corporate debtor a few others have taken an interpretation that the stay applies on enforcement of guarantee as well if a CIRP is going on against the corporate debtor.” xxx xxxxxx COMPANY APPEALNO.759 OF 2020 12 “5.7 The Allahabad High Court subsequently took a differing view in Sanjeev Shriya v. State Bank of India 2017 ADJ 723 by applying moratorium to enforcement of guarantee against personal guarantor to the debt. The rationale being that if a CRIP is going on against the corporate debtor and such an interpretation may lead to the contracts of guarantee being infructuous and not serving the purpose for which they have been entered into. 5.8 In State Bank of India v. V. Ramakrishnan and Veeson Energy Systems NCLAT New Delhi Company Appeal (Insolvency) No. 213 2017the NCLAT took a broad interpretation of Section 14 and held that it would bar proceedings or actions against sureties. While doing so it did not refer to any of the above judgments but instead held that proceedings against guarantors would affect the CIRP and may thus be barred by moratorium. The Committee felt that such a broad interpretation of the moratorium may curtail significant rights of the creditor which are intrinsic to a contract of guarantee.” 5.9 A contract of guarantee is between the creditor the principal debtor and the surety where under the creditor has a remedy in relation to his debt against both the principal debtor and the surety National Project Construction Corporation Limited v. Sandhu and Co. AIR 1990 P&H 300]. The surety here may be a corporate or a natural person and the liability of such person goes as far the liability of the principal debtor. As per section 128 of the Indian Contract Act 1872 the liability of the surety is co extensive with that of the principal debtor and the creditor may go against either the principal debtor or the surety or both in no particular sequence NO.759 OF 2020 13 principal debtor is merely shifted to the surety to the extent of payment by the surety. Thus contractual principles of guarantee require being respected even during a moratorium and an alternate interpretation may not have been the intention of the Code as is clear from a plain reading of Section 14. 5.11 Further since many guarantees for loans of corporates are given by its promoters in the form of personal guarantees if there is a stay on actions against their assets during a CIRP such promoters may file frivolous applications to merely take advantage of the stay and guard their assets. In the judgments analysed in this relation many have been filed by the corporate applicant under Section 10 of the Code and this may corroborate the above apprehension of abuse of the moratorium provision. The Committee concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.” 33. The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature would be clear from the following judgments: 33.1.CIT v. Shelly Products 5 SCC 461: “38. It was submitted that after 1 4 1989 in case the assessment is annulled the assessee is entitled to refund only of the amount if any of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn 1995) 2 SCC 430 :212 ITR 404] has held that provisoto Section 240 is declaratory and therefore provisoshould also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of 38 two parts one part may be declaratory but the other part may not be so. Therefore merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However the view that we have taken supports the stand of the Revenue that proviso to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by COMPANY APPEALNO.759 OF 2020 14 the assessee. We have held so without taking the aid of the amended provision. It therefore follows that provisoto Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was already implicit.” 33.2 CIT v. Vatika Township 1 SCC 1: “32. Let us sharpen the discussion a little more. We may note that under certain circumstances a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as “declaratory statutes”. The circumstances under which provisions can be termed as “declaratory statutes” are explained by Justice G.P. Singh Principles of Statutory 13th Edn. Lexis NexisButterworthsWadhwa Interpretation Nagpur 2012)] in the following manner: “Declaratory statutes” The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by the Supreme Court NO.759 OF 2020 15 meant’ is declaratory and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory it would not be so construed when the pre amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and therefore if the principal Act was existing law which the Constitution came into force the amending Act also will be part of the existing law.” The above summing up is factually based on the judgments of this Court as well as English decisions.” 32. Hon’ble Supreme Court in the case V Ramakrishnanheld that sub section 3(b) of Section 14 amendment being clarificatory in nature and is retrospective. Section 14 of the IBC refers only to debts due by Corporate Debtors who are limited liability companies and it is clear that the vast majority of the cases personal guarantees are given by Directors who are not in management of the companies. The object of the IBC is not allowed such guarantors to escape from an independent and co extensive liability to pay off the entire outstanding debt which is why section 14 of the IBC is not applied to them. Also held that contract of guarantee is between the creditor and principal debtor and the surety whereunder the creditor has a remedy in relation to his debt against both the principal debtor and surety. As per Section 128 of the Contract Act 1872 the liability of surety is coextensive with that of principal debtor and the creditor may go against either principal debtor or surety or both in no particular sequence. 33. We have considered whether the bank guarantee is an asset of Respondent No. 1NO.759 OF 2020 16 34. Ld. Counsel for the Appellant has placed reliance on the Judgment of Hon’ble AP High Court in the case of Haryana Telecom Ltd. held “The bank guarantee cannot be said to be the property of the first Respondent simply because it is indirectly going to be affected by enforcement of the said bank guarantee by the writ 35. Ld. Counsel for the Appellant also cited the Judgment of Hon’ble Supreme Court in the Case of UP State Sugar Corporationagainst the beneficiary”. 36. Ld. Counsel for the Appellant has also cited the Order of this Appellate Tribunal in the Case of Gail India Ltd. in this case the Corporate Debtor has issued performance bank guarantee whereas the case in hand is in regard to financial bank guarantee. Therefore this judgment is not helpful to the Appellant. 37. With the aforesaid we hold that the Corporate Debtor has issued bank guarantee for ensuring the price of goods. The bank guarantee is irrevocable and unconditional and payable on demand without demur. The assets of the surety are separate from those of the corporate debtor and proceedings against the corporate debtor may not be seriously impacted by the actions against assets of third party like surety. Bank guarantee can be invoked COMPANY APPEALNO.759 OF 2020 17 even during moratorium period issued under section 14 of the IBC in view of the amended provision under section 14of the IBC. 38. Ld. Adjudicating Authority has not considered the aforesaid amended provision. Therefore the impugned order is not sustainable in law. Hence the impugned order is hereby set aside. Resultantly the Respondent No. 2’s Application I.A.No.2572 ND 2020is dismissed whereas the Appellant’s Application I.A.No.2085 ND 2020 is allowed and declare that the bank in question can be invocated encashed even during the moratorium period under section 14 of the IBC against the Corporate Debtor Respondent No. 1). No order as to costs. Justice Jarat Kumar Jain) MemberKanthi Narahari) MemberNew Delhi 26th February 2021. COMPANY APPEALNO.759 OF 2020 |
‘Distress’ under the act should be interpreted broadly: Supreme Court | The Supreme Court shed light upon the meaning of ‘land’ and ‘distress’ under the West Bengal Restoration of Alienated Land Act, 1973. The appeal was partly allowed by the bench comprising of J. Sanjay Kishan Kaul, J. Aniruddha Bose and J. Krishna Murari in the case of Smt. Renuka Dey & Ors. v. Naresh Chandra Gope (D) THR. LRS. & Anr. [Civil Appeal No. 6264 of 2013]. The appellants, original owners of the land, conveyed their land to the respondents by a deed executed on 26th April, 1968 for a specific consideration amount. The particular land included parts of pond(tank) and a garden. In the deed itself, the reasons for such a transfer were specified as repayment of loan, meeting educational costs and purchase of another property. The appellants urged that along with this deed, there was a simultaneous deed executed for the reconveyance of the said property between the same parties. The transferors applied for restoration of the property in 1974, which stood rejected by the Special Officer as well as the High Court of Calcutta (under constitutional writ jurisdiction). Civil writ petition was filed by the appellants before the HC who remanded the matter to a Special Officer who sustained the application of restoration. The purchasers invoked writ jurisdiction on the ground that the land at question was a homestead non-agricultural land and there was no sign of distress, hence the Act was not applicable relying on the case of Prosad Kumar Dhara v. Kamala Kanta Dikshit [AIR 1982 Cal 532]. The learned counsel for the appellants argued before that SC that “the deed that what was sold was a pond, which can mean tank, as also highland trees as part of fishery”. He justified restoration on the grounds that the deed was coupled with the agreement of reconveyance and that distress is to be given a “liberal construction” as held in Chitta Ranjan Ghish v. State of West Bengal [(1976) s CLJ 180]. The SC, taking all the previous orders, facts and cases into consideration, stated that “Under Section 4(1)(a) of the Act, three situations have been contemplated as alternative conditions to enable a land holder to seek restoration of land already conveyed by him. These are “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. | contemplates in substance return of land to a small land raise funds to tide over financially distressed condition. For required to make an application to the authority prescribed under the said statute. We shall refer to that statute the provisions relating to restoration of the land already conveyed by him. The nature of land to which the said Act provision land means agricultural land and includes homestead tank well and water channel. To be eligible for the transferor cannot exceed two hectares. The 1973 Act as “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his on 26th April 1968. The transferors of the land forming 9th August 1974. At that point of time the 1973 Act as down the conditions under which a transferor could seek “4. Procedure for effecting restoration of alienated under circumstances.—(1) Where before the the transferor holding not more than 2 hectares of land in the aggregate transferred the whole or any part of his land by sale to any person being the transferee then if of the year 1967 being in distress or in need of money for the maintenance of himself and his family or for meeting the or oral for reconveyance of the land transferred to the transferor the date of such transfer or within two years from the date of commencement of this Act whichever period expires later make an application in the prescribed manner to the Special Officer having transferred is situate for restoration of 2) On receipt of such application the 3) On the date fixed in the notice for hearing such application or on any be adjourned by the Special Officer the If after considering such evidence and hearing the parties the Special Officer is satisfied that such transfer was made by purpose referred to in clause of sub sectionor as the case may be within the time and under the conditions transferor and directing the transferor to not exceeding ten and by such dates as of the consideration which was actually such transfer together with interest on such amount at the rate of four per centum per annum from the date of his receipt of such consideration and the amount of improvements effected to such land allowed by the Special Officer and determined by him in the manner the manner prescribed of the net income any compensation Provided that the first of the instalments section shall be payable within three expiry of the year 1967 and the date of commencement of this Act and includes subsequent transfer such subsequent iii) the expression “consideration which transferor” shall mean where there was any evidence adduced by a transferor varying adding to or subtracting from the terms of the sale deed to prove the actually paid by the transferee to the 6) When the special Officer makes an Public Demands Recovery Act 1913 Bengal Act III of 1913) against the shall notwithstanding anything contained in such order become due and payable at once and on such payment being made certificate shall be set aside and the amount paid shall be applied towards remain due satisfaction of the decree or the certificate for valuable consideration or a usufructuary mortgage such payment shall be made to the transferee and the person in possession of such land as a c) in other cases such payment shall be Provided that if such land is subject to a bonafide mortgage other than a was executed after the transfer of such Officer shall direct that such instalments shall first be paid to the mortgagee until the amount due under the mortgage as and that the thereafter any such 7) the amount ordered to be paid by a charge on the land in respect of which order under subsection is made is after the date on which such order takes effect under subsection of section 5 sold in execution of a decree or of a certificate filed under the Bengal Public Demands Recovery Act 1913 against the transferor to whom restoration had been made or otherwise transferred by him the whole of the amount payable under such order then remaining due shall notwithstanding anything contained in such order at once become due and payable and the person to whom such amount is payable shall be entitled to 2. Malina Bala DeySmt. Bebi and Renuka 26th April 1968 for a consideration of Rs. 9 500 . So far as behalf of her two minor sons and also a daughter. The land also spelt as Baby on certain documents) wanted the sale her sister. The third vendor also deed that the sale was being effected for meeting the of the paper book at page 50). On the very same date the Dey purchased another piece of immovable property for a two sons and daughter of Renuka Dey and legal time period by when the agreement was to be executed as “Now I enter into an agreement with you to you the property described in the property inspite of receiving from you Rs 9500 at a time within the aforesaid period then you by this Ekrarnama shall get the aforesaid property executed and Ekrarnama shall be cancelled and after be entitled to make any claim for The transferors applied for restoration of the subject jurisdiction over the subject land. It was urged before the deed of conveyance was coupled with a reconveyance agreement. Before the set of proceedings giving rise to this appeal had originated there was an earlier round. The proceedings in the earlier round had also reached the High Court at Calcutta in its constitutional writ jurisdiction. The Special Officer as also by the appellate authority. The writ 8574of 1983. By a judgment delivered on 18 th March 1993 was remanded to the Special Officer. Hearing the matter on remand the Special Officer sustained the application for restoration by an order passed on 14th March 1995. Corollary directions were passed for refund of the consideration money the 1973 Act the Special Officer found that at the time of effecting sale Renuka Dey was unemployed widow and employment of the son of Malina Bala Dey was also not land was originally purchased for maintaining the family and at a reduced price to meet further debt. The Special Officer two years from 26th April 1968 was also recorded in the said order which was made on 14th March 1995. The appeal of the purchaser against the restoration order was also dismissed by the SubDivisional Land and Land Reforms Officer. The appellate authority sustained the finding of the and Tenancy Tribunal which heard the “To establish that the transferor was applicant has again baselessly submitted that the husband of Renukabala was a railway employee that Renukabala was a school teacher that the son of Malinabala that transferors purchased on the same date 1.33 acre of land. All these points after due consideration rejected them as an appointment as a teacher after the transfer was made. The son of laminable in the family. Because of the marriage of further debt. Hence they had to sell the lands in the urban area. With half the consideration money they purchased the on for more than 4 years. They were It is therefore evident that the applicant has not only raised the same authorities have rightly decided the questions and there is no illegally High Court at Calcutta and their petition was registered as main point which was urged on behalf of the purchaser respondents was that the land in question was not be applicable so far as the subjecttransaction was Tribunal or the other statutory fora never addressed the question as to whether the land in question came within the purview of the 1973 Act or not. The High Court also went Scheme of the said Act deals with of his family or meeting the cost of his cultivation. In the present case we feel none of the said criterions has been The deed which was prepared for the land was required to be sold for the purpose of meeting the loan incurred for the purview of the said Act and on the day the petitioner had purchased certain agricultural land. This is an undisputed If that be so it cannot be said to be a provide relief to the Agriculturists in respect of distress sale or the like and obviously it cannot be called a distress decision of this Court in Prosad Kumar Dhara vs. Kamala Kanta Dikshit & Ors supra) cited by Shri Basu is fully the case of Prosad Kumar Dhara v. Kamala Kanta Dikshit AIR 1982 Cal 532]. In this judgment while analysing the definition of land it was held by the Division Bench that the been defined to be limited to agricultural land. Referring to homestead land the Division Bench took the view that any and every structure on nonagricultural land. The High “In view of the fact the basic question which we have found has remained Tribunal and as the same decides a preliminary issue. We feel the order passed which has been brought before Accordingly we allow the application Order dated 13.06.2003 passed by the applicants for restoration or their legal representatives. Our “2(2) “land” means agricultural land and includes homestead tank well and water Mr. Bhattacharya learned advocate appearing for the appellants has argued that the definition of land includes homestead tank well and water channel. So far as the land tank as also highland trees as part of fishery. We quote below the said schedule from Annexure R1 of the counter affidavit Under District and District Registry Burdwan P.S. and SubRegistry Kalna Pargana Raipur within Kalna Municipality J.L. No. 166 Mouza Madhuban Touzi No. 135 R.S. No. 948 Khatian No. 47 Jot Khatian Nmo. 53 Dag No. 156 Pond named Galakata Pond total 24 satak thereof and the annual tax of it is 2.31 paisa total 1.59 shatak tax 6.765 paisa Government of West Bengal thorough 9. Mr. Bhattacharya has sought to justify the restoration order on the ground that alienation was effected for was coupled with an agreement for reconveyance which was proved before the factfinding statutory fora. He has cited a decision of Calcutta High Court in the case of Chitta Ranjan that liberal construction of the word “distress” ought to be given. We quote below the relevant passage from this got divergent meanings. But where the purpose of the Act is to give relief to the poor raiyats the word distress must have than two hectares of land obviously does not include the cost of either of a costly tractor or the cost of diesel or electric pumps for the purpose of irrigation. In West Bengal the cost of cultivation varies from one district to another. It depends the availability of the labour facilities of irrigation cost of menures and similar powers have been conferred by the Act upon the Special Officer to meet the exigencies of the situation.” In a later judgment Habu Mondal v. Collector Bankura 11. On behalf of the respondents who are successors of the original purchaser Mr. Abhishek Manchanda learned advocate only the people engaged in agriculture who had to resort to come within the purview of the statute. In support of this has been utilised for purchasing another agricultural land would not per se disentitle a transferor from invoking the restoration provision contained in the 1973 Act provided of course the transaction sought to be repudiated otherwise fora. Fresh purchase of land covering little over half of the consideration sum received from sale of the subjectland was also for the purpose of maintaining the necessities of the did not constitute distress sale. The reasons cited by the vendors for selling the land definitely show that they were in need of money. Under Section 4 (a) of the Act three enable a land holder to seek restoration of land already and the vendors’ reasons for transfer spelt out in the conveyance deed itself in our view comes within the broad terms expressed in the statute. We set aside this part of the finding of the High Court. We however are unable to find nature or character of land was never gone into. In our view In Prosad Kumar Dhara it was held by the Division Bench of the High Court that homestead land when included Law by the jurisdictional High Court. The said judgment has pond or tank should also have some connection with agricultural land or the occupation of the transferor as 14. We find from the schedule to the deed of conveyance dated description of the land. It is a fact that on a reading of the orders of the Special Officer Appellate Authority and the three fora. All the three fora proceeded on the basis that the question at this stage. But that point was argued before the suited from the restoration proceeding particularly since this point does not appear to have had been raised before the crucial point which should have been determined before 15. For this reason we modify the judgment under appeal and giving opportunity of hearing to the opposing parties or their learned advocates as the case may be. We also request the the said statute the order of the authority of first instance passed on 14th March 1995 shall stand revived and the Tribunal shall make appropriate order for refund of the sum received as sale proceeds with interest upon making computation in terms of the statutory provisions. We have be taken. If on the other hand it is found that the land did not right or claim under the 1973 Act for restoration of the land conveyed and the deed executed on 26th April 1968 shall 17. The appeal stands partly allowed in the above terms Pending applications if any shall stand disposed of. Parties to |
Mere dispatch of the report to the accused is not a sufficient compliance with the requirement of Section 13(2) of Prevention of Food Adulteration Act, 1954: The Supreme Court of India | Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section 5 (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The aforesaid has been upheld by the Supreme Court of India while adjudicating the case of Narayana Prasad Sahu v. The State Of Madhya Pradesh [Criminal Appeal No. 1312 of 2021] which was adjudicated upon by a single judge bench comprising Justice Abhay S. Oka on 29th October 2021. The facts of the case are as follows. The appellant was selling chana daal in weekly market in Kagpur when the Food Inspector came there and called upon the appellant to show licence. However, the appellant failed to show any licence. The Food Inspector purchased 750 gms of chana daal from the appellant. The said quantity was sent for examination to Public Analyst. The report of Public Analyst showed that the chana daal was adulterated. The learned Magistrate convicted the appellant to undergo rigorous imprisonment for six months and to pay fine of Rs.1000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for one month. In appeal preferred by the appellant, the Sessions Court confirmed the conviction and sentence. The appellant preferred a Revision Application before the High Court, which has been dismissed by the impugned Judgment and Order. The submission of the learned counsel appearing for the appellant is that as mandatorily required by sub-section (2) of Section 13 of the said Act of 1954, a copy of report of Public Analyst was not supplied to the appellant, as a result of which his valuable right to get the samples analysed by Central Food Laboratory had been defeated. The court perused the facts and arguments presented. It was of the opinion that “On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.” | IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1312 OF 2021 Arising out of Special Leave PetitionNo. 59918 NARAYANA PRASAD SAHU ..…APPELLANT THE STATE OF MADHYA PRADESH .....RESPONDENT J U D G M E N T Abhay S. Oka J The appellant has been convicted for the offence punishable under Sectionof the Prevention of Food Adulteration Act 1954 andof Section 7 of the said Act of 1954. The case of the prosecution is that on 16 th January 2002 the appellant was selling chana daal in weekly market in Kagpur when the Food Inspector came there and called upon the appellant to show licence. However the appellant failed to show any licence. The Food Inspector purchased 750 gms of chana daal from the appellant. The said quantity was divided into three parts and was sent for examination to Public Analyst. The report of Public Analyst showed that the chana daal was adulterated. Judgment and Order of conviction was rendered by the Judicial Magistrate First Class on 12th October 2007. The learned Magistrate convicted the appellant to undergo rigorous imprisonment for six months and to pay fine of Rs.1000 . In default of payment of fine he was directed to undergo rigorous imprisonment for one month. In appeal preferred by the appellant the Sessions Court confirmed the conviction and sentence. The appellant preferred a Revision Application before the High Court which has been dismissed by the impugned Judgment and Order dated 3rd May 2018. The submission of the learned counsel appearing for the appellant is that as mandatorily required by sub sectionof Section 13 of the said Act of 1954 a copy of report of Public Analyst was not supplied to the appellant as a result of which his valuable right to get the samples analysed by Central Food Laboratory has been defeated He pointed out that according to the prosecution case a copy of the report was allegedly sent to the appellant by registered post and endorsements made by the Postman showed that number of attempts were made to serve the letter but the appellant was not available even after giving intimation and therefore the letter was returned by the Postman. He submitted that the High Court has committed an error by holding that the appellant has refused to accept the copy of the report sent to him by registered post. He submitted that there is a complete violation of mandatory provisions of sub sectionof Section 13. He would therefore submit that the prosecution is vitiated. The learned counsel relied upon a decision of this Court in the case of Vijendra v State of Uttar Pradesh1 in support of his contentions. He also relied upon a decision of Allahabad High Court in the case of Jameel v. State of U.P. and Ors.2 The learned counsel appearing for the respondent State supported the impugned judgments. He relied upon Rule 9B of Prevention of Food Adulteration Rules 195515 SCC 763 2SCC online Allahabad 1547 envelope. He submitted that a presumption of service of the report has been rightly drawn by the High Court. He would therefore submit that no interference is called for. 5. We have carefully considered the submissions. Sub sectionsof Section 13 of the said Act of 1954 reads thus: “13. Report of public analyst.—(1) The public analyst shall deliver in such form as may be prescribed a report to the LocalAuthority of the result of the analysis of any article of food submitted to him for analysis. 2) On receipt of the report of the result of the analysis under sub sectionto the effect that the article of food is adulterated the Local Authority analysed by the Central Food Laboratory” Under sub section of Section 13 it is mandatory for the Local Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub section 2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused his right under sub sectionof Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated Consequently his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of sub section of Section 13 and the report must be served on the accused. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope the Postman who has allegedly made the said remarks was admittedly not examined by the Rule 9B of the said Rules reads thus: “9B. Localauthority to send report to person concerned The Local Authority shallafter the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub ruleof rule 7 by registered post or by hand as may be appropriate to the person from whom the sample of the article was taken by the food inspector and simultaneously also to the person if any whose name address and other particulars have been disclosed under section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder and no prosecution is intended under sub section 2) or no action is intended under sub sectionAuthority shall intimate the result to the Vendor from whom the sample has been taken and also to the person whose name address and other particulars have been disclosed under section 14A of the Act within 10 days from the receipt of the report from the More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case after the postal packet was returned not even an attempt was made to personally serve the report on the appellant. On the basis of endorsements of the Postman appearing on the postal envelope containing the report the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover the High Court has glossed over the mandatory requirement under sub sectionof Section 13 of serving a copy of the report on the accused Evidence adduced by the prosecution was of mere dispatch of the report. Hence the mandatory requirement of sub section of Section 13 was not complied with. Therefore the conviction and sentence of the appellant cannot be sustained. Accordingly the appeal is allowed. The impugned Judgment and Order of the High Court dated 3rd May 2018 in CRR No. 303 2008 is hereby set aside and by allowing the Revision Petition the conviction of the appellant is hereby set aside. .. …J New Delhi October 29 2021 ABHAY S. OKA |
When matter is amicably settled between the parties, the complainants should be permitted to compound such offences against the applicants: High Court of Uttarakhand. | Where the petitioner and respondent had amicably settled the dispute and the complainants do not want to prosecute the petitioner further, therefore, the complainants (respondents herein), should be permitted to compound such offences against the applicants. A single Judge bench comprising Hon’ble Justice R.C. Khulbe, in the matter of Narendra Versus State of Uttarakhand & Anr (Compounding Application No. 2 of 2021 In Criminal Writ Petition No. 1189 of 2021), dealt with an issue where the petitioner filed present writ petition under Article 226 of the Constitution has been filed by the petitioner to quash the FIR filed under Sections 147, 307, 504 and 506 IPC at Police Station Ranipur District Haridwar. In the present case, the compounding application had been filed on behalf of the parties with a prayer that the parties have buried their differences and have settled their dispute amicably. Also, it was in the record that opposite party no. 3-Vipin Kumar, the party no. 4 Ravindra and party no. 5 Sonu @ Hartik do not want to prosecute the petitioner and the dispute had been amicably settled between them. The counsel for the petitioner submitted that injuries sustained by the petitioner were not dangerous to life, hence, no case u/s 307 is made out against the petitioner. As per the medical report, all the injuries were simple in nature. Thereby the court considered that no offence was made out against the petitioner under Section 307 of IPC. The Hon’ble Supreme Court in the cases of Nikhil Merchant vs. C.B.I. and another, 2008 AIR SCW 7501 and Dimpey Gujral vs Union Territory through Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.) has permitted compounding of such type of offences, which are otherwise non-compoundable, within the scheme of Section 320 of Cr.P.C. It was observed by the Hon’ble Apex Court that the inherent power of the Court will not come in the way of compounding of otherwise non-compoundable offences. The court observed – “Since the complainants have settled the dispute amicably with the petitioner and do not want to prosecute the petitioner further, therefore, the complainants (respondents herein), should be permitted to compound such offences against the applicants.” The present petitioner was thereby quashed on the basis of compromise arrived at between the parties and the writ petition was disposed of. | IN THE HIGH COURT OF UTTARAKHAND AT Compounding Application No. 21 Criminal Writ Petition No. 11821 Narendra .. Petitioner State of Uttarakhand & Anr. Mr. V.S. Chauhan learned counsel for the petitioner. Mr. Sachin Panwar learned Brief Holder for the State. Mr. Priyansh Kumar learned counsel for the complainant. Hon’ble R.C. Khulbe J. Present writ petition under Article 226 of the Constitution has been filed by the petitioner to quash the FIR dated 04.01.2019 registered as FIR No. 004 of 2019 under Sections 147 307 504 and 506 IPC at Police Station Ranipur District Haridwar application has been filed on behalf of the parties with a prayer that the parties have buried their differences and have settled their dispute amicably. The compromise is on the record duly notarized by the Notary wherein it has clearly mentioned that opposite party no. 3 Vipin Kumar party no. 4 Ravindra and party no. 5 Sonu @ Hartik do not want to prosecute the petitioner and the dispute has been amicably settled between them. It is contended by the learned counsel for the petitioner that the injuries sustained by the petitioner were not dangerous to life hence no case u s 307 is made out against the petitioner. I have also gone through the medical report which is on record. As per the medical report all the injuries are simple in nature. Considering the submissions of learned counsel for the petitioner and after going through the medical report in my considered view no offence under Section 307 of IPC is made out against the petitioner. Offences punishable under Sections 504 and 506 IPC are compoundable offences within the scheme of Section 320 Cr.P.C. whereas offence under Section compoundable. The Hon ble Supreme Court in the cases of Nikhil Merchant vs. C.B.I. and another 2008 AIR SCW 7501 and Dimpey Gujral vs Union Territory through Administrator U.T. Chandigarh and others AIC 119 has permitted compounding of such type of offences which are otherwise non compoundable within the scheme of Section 320 of Cr.P.C. It was observed by Hon ble Apex Court that the inherent power of the Court will not come in the way of compounding of otherwise non compoundable offences. The Hon ble Apex Court in Gian Singh vs. State of Punjab and another1 SCC160 has observed in the context of such cases as under: to quash “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 to secure the ends of justice orto prevent abuse of the process of any Court. In what cases power the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on 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 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 cases having offences. But overwhelmingly and pre dominatingly flavour stand on different footing for the purposes of quashing particularly the offences arising financial mercantile civil from commercial 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 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 law despite settlement and of process of 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 proceeding.” Since the complainants have settled the dispute amicably with the petitioner and does not want to prosecute the petitioner further therefore the complainants should be permitted to compound such offences against the In view of the above compromise application is allowed. As a consequence of the same FIR dated 04.01.2019 registered as FIR No. 004 of 2019 under Sections 147 307 504 and 506 IPC at Police Station Ranipur District Haridwar qua the present petitioner is hereby quashed on the basis of compromise arrived at between the parties. The present criminal writ petition accordingly stands disposed of. 10. Pending application if any also stands disposed of. |
All proceedings U/S.58 of the Bihar Prohibition and Excise Act, 2016 must be initiated/concluded within a period of ninety days: High Court of Patna | The court directed that all proceedings under section 58 of the Bihar Prohibition and Excise Act, 2016, must positively be initiated and concluded within a period of ninety days from the date of appearance of the parties. Further, Appeal/Revision, if any, should also be decided within a period of thirty days from the date of initiation, failing which the “things” (vehicle/property/ etc.) shall be deemed to have been released in terms of several orders passed by the Court. This was held in Anil Ravidas V. The State of Bihar and Ors. [CWJC No.7200 of 2021] in the High Court of Patna by a division bench consisting of Chief JUSTICE Sanjay Karol and JUSTICE S. Kumar. Facts are that the respondents had seized the Motorcycle of the petitioner bearing Registration No. BR 46E 5337 from Pakribarwan Police Station, District- Nawada P.S. Case No. 274 of 2019 on 20.08.2019. The seizure was carried out under Section 56 of the Bihar Prohibition and Excise Act, 2016. The same has not been released nor has any proceeding initiated on part of the respondent. The writ petition has been filed by the petitioner in regards to the same. The counsel for the petitioner had prayed for the issuance of a writ in the nature of mandamus directing and commanding the respondents to release the Motorcycle of the petitioner. He has relied on a case titled Md. Shaukat Ali Vs. The State of Bihar and Umesh Sah Versus the State of Bihar & Ors. In support of his case. The counsel for the respondents has no objection to the same. The court made reference to the judgment of the Patna High court in Manish Kumar Chaudhary versus the State of Bihar & Ors, wherein it was observed that “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, 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 two months. The court also made reference to the judgment of the Patna High court in Md. Shaukat Ali Vs. The State of Bihar & Ors., wherein it was observed that “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.”. | IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.72021 Anil Ravidas Son of Brahmdeo Ravidas Resident of Village Lalpur Police Station Kawakol District Nawada The State of Bihar through the Principal Secretary Excise Department Government of Bihar Patna ... Petitioner s The District Magistrate Nawada The Superintendent of Police Nawada The O C Pakribarwan P.S. District Nawada 5. Mr. Binod Singh Police Sub Inspector Pakribarwan P.S. District Nawada ... Respondent s Mr.Man Mohan Kumar Mr. Vivek Prasad GP 7 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through Video Conferencing from their residential offices residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their Date : 10 06 2021 be taken up today. Learned counsel for the parties desire the matter Heard learned counsel for the petitioner and learned counsel for the State Petitioner has prayed for the following reliefs: Patna High Court CWJC No.72021 dt.10 06 2021 “i).For issuance of writ in the nature of mandamus directing and commanding the respondents to release the Motorcycle of the petitioner bearing Registration No. BR 46E 5337 in favour of the petitioner which has been seized in Pakribarwan Police Station District Nawada P.S. Case No. 274 of 2019 on 20.08.2019 to which other the any petitioner may be entitled to. ” For 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.17165 of 2019 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 @ Munilal 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 clauseor clauseis found and the other contents if any of such receptacle package or 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 Patna High Court CWJC No.72021 dt.10 06 2021 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. 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 ii) where such proceedings were initiated but not concluded within a reasonable time 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 Patna High Court CWJC No.72021 dt.10 06 2021 passing several orders. Resultantly this Court from time to time has been 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 “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 Patna High Court CWJC No.72021 dt.10 06 2021 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 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 procrastination in any one of the Patna High Court CWJC No.72021 dt.10 06 2021 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 If the appellant chooses not to prefer an appeal within the said statutory period or as 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 vacated. j) With the outcome of the Special Leave Petition No.29749 of 2016 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 proceedings initiated against the erring 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 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 171619(Umesh Sah Vs. The State of Bihar& Ors.)was taken up for hearing the State vehemently opposed the release of the vehicle and as such the following orders were passed 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 to provisionally release directing 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: the State i) Judgement dated 22.03.2018 passed in CWJC No.5049 of 2018 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.72021 dt.10 06 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.15435 of 2018 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.13119 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: in apart 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 were creating nuisance though were liable to be arrested. In any event the vehicle was not required to Patna High Court CWJC No.72021 dt.10 06 2021 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 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 proceedings initiated against the erring 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 authority. 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 to provisionally release directing 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: the State 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. Patna High Court CWJC No.72021 dt.10 06 2021 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 CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.15435 of 2018 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: in apart 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 Patna High Court CWJC No.72021 dt.10 06 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 proceedings initiated against the erring 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 Patna High Court CWJC No.72021 dt.10 06 2021 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 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 highlightedas also elaborately indicating the mechanism which the State has or desires Patna High Court CWJC No.72021 dt.10 06 2021 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 2016. 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 position about conclusion of the proceedings be it under Patna High Court CWJC No.72021 dt.10 06 2021 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 25.06.2021 at 10:30 A.M before the appropriate authority which may be in the attending facts the Collector of the Nawada District Appellate or the Revisional Authority. If the Collector is not himself dealing with the matter on account of delegation of power or Patna High Court CWJC No.72021 dt.10 06 2021 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. Liberty reserved to the petitioner to take recourse Patna High Court CWJC No.72021 dt.10 06 2021 to such remedies as are otherwise available in accordance with law if the need so arises subsequently. Petition stands disposed of with the aforesaid observations directions. Sanjay Karol CJ) ( S. Kumar J |
Section 378 Code of Criminal Procedure is not limited to seeing whether or not Trial Court’s view was impossible: Supreme Court | On deciding whether the High Court can interfere with the decision of Trial Court’s view, it was held that homicidal death cannot be left Judicium Dei and the scope of section 378 Cr.P.C cannot be restricted to a precautionary principle. This Judgment was passed in the case of Achhar Singh vs. State of Himachal Pradesh with Budhi Singh vs. State of Himachal Pradesh [Cr.A.No. 1140-1141/2010] by a Double Bench consisting of Hon’ble The Chief Justice and Hon’ble Shri Justice Surya Kant. The Appellant No. 1 was convicted for offences under section 452, 326 and 323 of the Indian Penal Code with rigorous imprisonment for 5 years and fine while Appellant No. 2 was convicted for offences under section 302 and 452 of the Indian Penal Code with imprisonment for life and fine. The prosecution’s case is that the complainants wife and mother attended the wedding function in a nearby village, where Appellant no. 2’s daughter got married. Due to the social boycott the family of complainant never attended any marriage function at the appellant’s house. While taking Dhaan both the appellant with other villagers started shouting at the complainant and his father. The assailants broke open the door, entered into the house with arms such as axes, spears and sickles. It was alleged that Appellant no.2 attached the mother with an axe due to which she died, the complainant and his father were beaten up by villagers and Achar Singh and the wife was threatened by them. The compliant filed a case in the police station the next morning. On investigation it was found that 7 people were involved in the attack who were charged under section 147, 148, 452, 506, 323, 302 and 326 of the Indian Penal Code. The Additional sessions judge acquitted the accused, on the grounds that the witness statement and the evidences placed before the court contradict each other. And the allegations made by the complainant could be exaggerated due to the rivalry between the parties. The High court on re-appreciating the evidence set aside the acquittal of the appellant and acquitted the other 5 accused. The High Court while rendering the judgment held that however messy the evidence was and contradictions were present there was a common thread of evidence against the appellants. The Hon’ble Supreme Court after hearing the parties inferred that the question in hand if the High Court under section 378 of the criminal procedure code can interfere in the acquittal of the trial court. The court opined that while it is a principle that when two views are possible, the High Court ought not to interfere with the trial court judgment. However, the same cannot be used for the application of Section 378 Cr.P.C.; and restrict its ambit. The Supreme court on the basis of case of Gangadhar Behra vs. State of Orissa [2002 8 SCC 381] and Hari Chand Vs. State of Delhi [1996 9 SCC 112] held that even in cases where a major portion of the evidence is deficient, if the residue proves that the accused is guilty that is sufficient. Further it emphasised that homicidal death cannot be left to “judicium dei” i.e., hands of god. Based on the judgments such as Basalingappa vs. Mudibasappa, Supreme Court held that, an order which is contrary to evidence is perverse. Therefore, the High Court rightly intervened. | Sessions Judge Mandi dated 24.02.1998 has been set aside Consequently Achhar Singh has been convicted for offences under Sections 452 326 and 323 of the Indian Penal Code 1860and 302 and 452 IPC and sentenced to undergo imprisonment for life The prosecution case in brief is that on the night of 23.02.1996 the complainant Netar Singh’s wifehad attended the marriage function in a nearby village at the house of the bridegroom with whom their neighbour Budhi Singh’s daughter got married. Both the ladies It is relevant to mention here that owing to their social boycott by Budhi Singh and some other villagers Netar Singh’s family did not when the complainant and his family were taking Dhaam Budhi house and bolt their door. The assailants however broke open the Singh had axes while the other accused were armed with sickles hit Beli Ram with an axe due to which the latter fainted. The begged the assailants for mercy and they left threatening that the Meanwhile some villagers including Govind Ram and Bahadur who were standing outside intervened and called on the accused persons to stop the violence whereupon the accused were Sections 147 148 452 506 323 302 and 326 of the IPC. the possibility of false implication. The belatedly exaggerated regard to the role of present appellants it was pointed out that according to the FIR Swari Devi died owing to a single axe blow one head injury on her person. However three prosecution eye witnesses namely Netar Singh P.W.1Meera Devi the face by Achhar Singh and Prakash but in their depositions the injured or eyewitnesses have attributed attacks to other coaccused persons also which were not corroborated by the medico legal report of Beli Ram. They also changed the nature of The trial Court also observed that eyewitness Govind Ram D.W.2) did not support the prosecution story and the Gram to contact the police. Noting that no evidence was put forth by the to be fatal to the prosecution. The spot of occurrence was also doubted observing that bloodstains were noticed in the passage the prosecution witnesses coupled with the allegation that about sixteen persons entered a small room and started attacking the not attribute any specific injury to any of the accused and thus though it has upheld the acquittal of the rest of the five accused be extracted from the material on record howsoever messy it was Disregarding the exaggerations and improvements made by the first axe blow by Budhi Singh on the head of Swari Devi was corroborated by the FIR the prosecution witnesses the postmortem the recovery of axe from him. The High Court noted that the allegations against Achhar Singh with regard to his assault on Beli the occurrence it was held that the evidence regarding the broken windowpanes scattered articles in the room plates with leftover food function could have been underway at Budhi Singh’s house on the hurt to Beli Ram the appellants were held to be liable for their individual acts. Budhi Singh was thus convicted for offences under Sections 302 and 452 IPC and Achhar Singh was convicted for the Relying on Murugesan v. State1 Learned Senior Counsel for ‘possible view’ further scrutiny by the High Court in exercise of powers under Section 378 CrPC was not called for. While citing be set aside merely because the appellate Court’s view is more advantage to judge the credibility of the witnesses and make intangible observations. Learned Senior Counsel highlighted the prosecution witnesses’ tendency to exaggerate and falsely implicate by the eyewitnesses were falsified by the medical evidence which showed only one head injury. It was also accentuated that nine persons who were mentioned in the FIR were let go at the stage of from a public place it could not be held that Budhi Singh was in possession of the article recovered. Additionally no conclusive midcelebration and attack his neighbours. Doubt was also cast on had deposed that there was a blood trail outside the house. It was further contended that Narinder Singh had also been accused of inflicting a head injury on the deceased with an axe and despite mortem the time between the death and the postmortem was justified in therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the The Babylonian Code of Hammurabi one of the accused. In Woolmington v. Director of Public Prosecutions10 the House of Lords held that the duty of the prosecution to prove the been statutorily dispensed with for example under Section 113B of the Evidence Act 1872. Regardless thereto the ‘Right of Silence’ of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure 1973 amplifies that the presumption of innocence until the accused is proved to be guilty is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence examines witnesses and acquits the the witnesses and direct interaction with evidence. In such cases interference is not thrusted unless perversity is detected in the It is thus a well crystalized principle that if two views are judgment. However such a precautionary principle cannot be against acquittal11. This Court has held in a catena of decisions Himachal Pradesh14 ) that the CrPC does not differentiate in the 11 Sangappa v. State of Karnataka 3 SCC 686 ¶ 10 power scope jurisdiction or limitation between appeals against The trial Court in the instant case rightly observed that the evidence was chaotic with regard to many accused persons and no regarding the exaggerations and contradictions within the evidence Keeping in mind the attempts by the prosecution witnesses to consistent evidence against some of the accused which were overlooked by the trial Court amid the chaos. While analysing the 17. Complainant Netar Singh deposed that when the Singh Achhar Singh Narinder Singh were armed with axes Prakash and Hem Singh) were bearing sticks. While mentioning the present the head of my mother while Narender accused gave two axe blows accused gave me danda blows”. It was also mentioned that the accused had broken the door windows and utensils. He then at about 89 AM the next morning. He also mentioned that prior animosity existed between the parties because Budhi Singh and Narinder Singh wanted to purchase the land where he had constructed a house and that his father Beli Ram had previously filed a case against the accused persons in which they had been 18. Meera Devi P.W.11 the daughter in law of the deceased stated in her testimony that Budhi Singh and Narinder Singh were armed with axes while Prakash carried a spear and Sodha Ram carried a ear of my motherinlaw and my motherinlaw fell down and died and Hem Singh gave danda blow to my husband Netar Singh.” She stated that her husband escaped to the roof reported the matter to inlaw’s body was sent for postmortem. During her cross Injured witness Beli Ramwas also examined and he stated that Budhi Singh Narinder and Achhar Singh came bearing axes while Prakash had a spear Sodha Ram had a sickle and Jai and on my leg….Netar Singh was given beatings by Jai Singh and Hem the roof. It was mentioned that the accused persons had formed a committee to boycott them and thus nobody from the village gave evidence in their favour. He also disclosed that “Narinder Singh accused also gave blow blunt side of the axe on my face near ear.” Thereafter he fell unconscious and was medically examined at the 20. Dr. DD Rana who conducted the postmortem of the deceased examined as P.W.3. with regard to Swari Devi he described one incised wound on the left temporal region which he stated could have of his skull a lacerated wound on the right foot fracture in the facial Ram could be inflicted by falling on a sharpedged stone and other even if the exaggerations of multiple axe blows being given to the house of the victims armed with an axe and hit Swari Devi on her witnesses. The same is also supported by the postmortem report as to who caused Swari Devi’s fatal injury was unwarranted and and posterior skull along with fracture in the facial bone) being a the witnesses have been consistent about Achhar Singh’s attack on of the Doctorand the postmortem report is unacceptable. As noticed earlier the prosecution witnesses have given an over exaggerated version of the injuries suffered by the deceased. They have however consistently deposed that the head injury which proved to be fatal was caused by Budhi Singh. Their statement to this room of occurrence created chaos and some of such persons were that the fatal blow to the deceased was caused by none else than “exaggeration” as “the fact of making something larger more important better or worse than it really is”. MerriamWebster defines the term Oxford Dictionary defines it as “enlarged or altered beyond normal proportions”. These expressions unambiguously suggest that the genesis of an ‘exaggerated statement’ lies in a true fact to which exaggeration therefore has the ingredients of ‘truth’. No exaggerated Advance Law Lexicon defines “false” as “erroneous untrue opposite of correct or true”. Oxford Concise Dictionary states that “false” is “wrong not correct or true”. Similar is the explanation in other dictionaries as well. There is thus a marked differentia between an contains both truth and falsity whereas a false statement has no make a mountain out of a molehill the molehill shall have to exist primarily. A Court of law being mindful of such distinction is duty of the accused conviction can be based on it. This Court in Hari 15 Sucha Singh v. State of Punjab 7 SCC 643 ¶ 18. maxim falsus in uno falsus in omnibus cannot apply part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to P.W.1 P.W.11 and P.W.12 are therefore to be analysed accordingly We find that the truth can be effortlessly extracted from their statements. The trial Court apparently fell in grave error and not justified in reversing the trial Court’s judgment unless it was to identify and appreciate material admissible evidence against the appellants. The trial Court misdirected itself to wrong conclusions court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact the trial court had failed to take into supra) Triveni Rubber & Plastics v. CCE18 and Basalingappa v Mudibasappa19) where this Court has firmly held that a finding ignorance of the relevant material on record was undoubtedly Court it has to be kept in mind that neither is there a reason on instead falsely implicate the appellants to settle scores on trivial issues. Rather from the very beginningtill their last deposition the complainant and other two injured eye witnesses have been consistently accusing Budhi Singh for committing murder of Swari “26….Ordinarily a close relative would be the last to person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to a grudge along with the guilty but foundation must be laid for such a criticism and the mere fact of guarantee of truth. However we are not attempting any 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 This decision has been usually followed by this Court in various cases such as Mohd. Rojali Ali v. State of Assam21 Laltu Ghosh v State of West Bengal22 Khurshid Ahmed v. State of J&K23 and 31. Coming to the arguments of Learned Senior Counsel for the appellants that since the axe was recovered from a public place it was sought) it is clear from the facts that this was a farming community in rural Himachal where tools like axes are found in everyone’s homes. The argument that the spot of incident was P.W.16 ASI Jaisi Ram carries no force. The presence of random blood marks elsewhere could not put in doubt the fact that the incident happened in the house of the complainant from where the same witness recovered sticks bloodstained stone glass splinters it necessary or even material to investigate the blood marks shows pertinent to note that independent witness P.W.14 Lauhalu Ram also corroborated the recovery of broken pieces of the door broken bulb stones bloodstained soil etc. from the house of the it is clear from the facts that the complainant’s family had prior boycotted the victim’s family. The fact that nine persons who were not arrayed as prosecution witnesses is understandable. It is not necessary for the prosecution to examine every cited or possible proof beyond doubt nonexamination of all or every witness is This Court in Sarwan Singh v. State of Punjab25 was of the the prosecution and it follows as a logical corollary that the to prove its case. The court cannot compel the prosecution to inference against the prosecution…The law is wellsettled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words before an adverse inference against the prosecution can be drawn it must be than the quantity of the evidence that matters. In the from any infirmity or any manifest defect on its intrinsic was ‘within 10 hours’ has also deposed that the time between the death of Swari Devi and the injury was ‘within 510 minutes’ thereby 35. Coming to the case of Narinder Singh whose acquittal has been FIR though not an encyclopedia of the entire incident is the most spontaneous account of it. It is very hard to believe that the complainant who walked seven hours overnight to reach the police Singh as well. Such a major omission on the complainant’s part is High Court has only acted on consistent and corroborated evidence against Budhi Singh and Achhar Singh which was conspicuously at the relevant time. Even Budhi Singh has not said so in his Court and has prevented miscarriage of justice by separating grain are maintained. Their bail bonds are cancelled and they are |
Bail is not to be withheld as a punishment: High Court of Himachal Pradesh | The objective of bail is to secure the attendance of the accused in the trial and the rationale behind the test to issue bail is to see if the accused will appear before the court for a smooth trial. An accused is supposed to be treated as innocent until proven guilty and this applies to the concept of bail as well. This was decreed by the Hon’ble Mr. Justice Sandeep Sharma in the case of Sher Singh vs. State of Himachal Pradesh [Cr.MP(M) No.1237 of 2021] which was decided on the 09th of July 2021 in the Hon’ble High Court of Himachal Pradesh at Shimla. The brief facts of the case are, an FIR was registered under section 498-A, Section 506 and Section 323 of the Indian Penal Code on the 30th of June 2021 with the police station, Kasumpati, district Shimla, Himachal Pradesh. An interim bail was granted to the petitioner through an order dates 6.07.2021 in the event of arrest in the above-mentioned case. Mr. Sudhir Bhatnagar, learned Additional Advocate General fairly states that pursuant to order dated 6.7.2021, bail petitioner has already joined the investigation and he is fully co- operating with the investigating agency. It was also submitted that nothing is required to be recovered from the bail petitioner and as such, his custodial interrogation is not required and he can be ordered to be enlarged on bail subject to the condition that he shall make himself available for investigation and trial as and when called by the investigating agency. The learned court after listening to the submissions of both parties decreed that the norm around bail is ‘bail not jail’. The freedom of the individual is of utmost importance and the court relied on the judgment in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr wherein, it was held that “To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons”. The court analyzed the objective behind bail with the help of the judgement decreed by the Supreme court in Sanjay Chandra Vs. CBI (2012) 1 SCC 49 wherein, “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test.” | Hig h C o urt of H.P on 12 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.12321 Decided on: 9.07.2021 ____________________________________________________________________ Sher Singh .. Petitioner Versus State of Himachal Pradesh …..Respondent ____________________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 For the petitioner: Mr. Shakti Bhardwaj Proxy Counsel. For the respondent: Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocate General. ____________________________________________________________________ Sandeep Sharma Judgeis an exception. Unfortunately some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first time offender or has been accused of other offences and if so the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Hig h C o urt of H.P on 12 07 CIS 4 Code of Criminal Procedure 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure 1973. 5. To put it shortly a humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person howsoever poor that person might be the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons leading to social and other problems as noticed by this Court in In Re Inhuman Conditions in 1382 Prisons 6. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise bail is not to be withheld as a punishment. Otherwise also normal rule is of bail and not jail. Court has to keep in mind nature of accusations nature of evidence in support thereof severity of the punishment which conviction will entail character of the accused circumstances which are peculiar to the accused involved in that crime. 7. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation14 SCC 496 has laid down the following principles to be kept in mind while deciding petition for bail:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated Hig h C o urt of H.P on 12 07 CIS 6 reasonable apprehension of the witnesses being influenced and danger of course of justice being thwarted by grant of bail. 9. Consequently in view of the above order dated 6.7.2021 passed by this Court is made absolute with following conditions: a. he shall make himself available for the purpose of interrogation if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application b. he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever c. he shall not make any inducement threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer and d. he shall not leave the territory of India without the prior permission of the Court. 10. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him the investigating agency shall be free to move this Court for cancellation of the bail. 11. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly. Copy dasti. Judge 9th July 2021 |
Committee appointed for independent enquiry into security breach issue: Supreme Court | The petitioner, an NGO named Lawyer’s Voice filed a petition in the supreme court and demanded recognition of the issue of serious security lapse and probe an independent enquiry committee to find out the reasons of the breach. The petition was brought before a supreme court bench comprising of CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli in the matters between Lawyer’s voice v State of Punjab & Others. WRIT PETITION (CIVIL) No. 13 OF 2022 decided on 12th January, 2022. The issue arose after an incident on 5th of January, 2022, where the convoy of the Prime Minister (PM) was stuck on a flyover for twenty minutes, while he was on visit to Hussainiwala, District Firozpur, State of Punjab. The matter was taken up on 7th of January, 2022 in the Supreme Court where the arguments were presented by Mr. Maninder Singh, Senior Advocate on behalf of the petitioner and by Mr. Tushar Mehta, SGI, on behalf of Union of India and Mr. DS Patwalia, learned advocate on behalf of State of Punjab. Before the hearing, a committee was constituted by the State of Punjab to issue a probe into the lapses that led to the PM’s security breach on his visit to the State. However, it was submitted by the petitioners that it is unfair to make the State a judge of its own actions and an independent enquiry into the issue is needed. It was submitted by the respondent’s council that the Ministry of Home Affairs and Government of India had already held the State of Punjab ‘guilty’ for this security lapse even though there was no omission of responsibility from their side. Adding to this, the state expressed its willingness for an independent enquiry. The matter was discussed at length going into the provisions of Special Protection Group Act, 1908 and the Bluebook. It was observed that the solution is not only to hold the officers responsible for this liable but also look into the seriousness of the matter and ensure that such incidents do not take place. The court ruled out that there is a need for independent enquiry into this issue and for that appointment for a committee is required. A committee comprising of Justice Indu Malhotra, a former Judge of the Supreme Court of India Chairperson; Director General or his nominee not below the rank of Inspector General of Police of National Investigation Agency Member; Director General of Police, Union Territory of Chandigarh Member; Additional Director General of Police (Security), State of Punjab Member; and Registrar General, Punjab and Haryana High Court- Member cum Coordinator has been appointed by the Supreme Court to probe an independent enquiry into the breach of security issue and to look into the causes of the breach; find out the extent of responsibleness and suggest measures which can avoid such instances. Click here to view the entire judgement. | 1. The present Writ Petition arises out of the incident dated 5.01.2022 wherein on a visit to Hussainiwala District the country and takes up causes that are in public interest “(a) Take cognizance of the serious and deliberate lapse on part of the Respondent Nos. 1 2 ad 3 Direct the learned District Judge Bhatinda to collect all official documents and materials from all possible sources pertaining to the movements and deployment of Punjab Police in connection with the or direction fixing responsibility of the Respondent No. 2 and Respondent No. 3 and place them under 3. Petitioner contends that the incident constitutes a very grave 4. Given the seriousness of the subject matter and the need to security apparatus we took up the matter on the 07th January General on behalf of Union of India and Mr. D.S. Patwalia on behalf of the Petitioner the learned Solicitor General Mr. Tushar Mehta and the learned Advocate security of WP(C)No.13 2022 the Hon’ble Prime deem it appropriate for the time being to direct the Prime Minister’s scheduled tour of Punjab on 05th 3. We direct the Director General of Police Union General to be nominated by the Director General National Investigation Agency to assist the Registrar Group and any other Central State agencies to cooperate and to provide necessary assistance in 5. We direct the Registrar General Punjab and Haryana High Court to keep the records in his safe order electronically forthwith to the Registrar General Punjab and Haryana High Court the Director General of Police Union Territory of Chandigarh the Director General National Investigation Agency and the Principal Secretary Home State of Punjab been submitted wherein it has been stated that the relevant records have been received seized and secured. The same 6. On the previous date of hearing it was also brought to our carry out a thorough probe into the lapses that occurred during the Firozpur visit of the Hon’ble Prime Minister. The Committee comprised of a Former Judge of the Punjab and Justice Government of Punjab. It was urged on behalf of the constitution of an Enquiry Committee by the State was 7. The State of Punjab on the other hand has placed on record India Ministry of Home Affairs Internal SecurityI Division Punjab including its Chief Secretary and Director General of within 24 hours as to why disciplinary action under the All be initiated against them for their “omissions and commissions”. The learned Advocate General for the State of India has in a way already held the officers of Government of Punjab ‘guilty’ of the alleged negligence and or breach of security of the Hon’ble Prime Minister. He maintained that discredit the State Government. All the same the learned more than willing to have an independent enquiry of the length and studied the provisions of the Special Protection Group Act 1988 along with the relevant quite comprehensive with respect to ensuring proximate security of the Prime Minister or a former Prime Minister or their family members as the case may be. The Blue Book contains an unambiguous and detailed procedure to be observed by the State Authorities and the Special Protection object is to avoid any human error negligence or any willful his visit to Firozpur on 5th January 2022 is not seriously disputed by either party. There is however a blame game between the State and Central Government as to who is 10. We therefore find merit in the submission of Shri Maninder are the Officer(s) Authority responsible for the abovestated 11. The learned Solicitor General appearing for the Union of India supported the submission of the Petitioner and prayed for a 12. Keeping the above submissions made by the parties in view we left to be resolved through onesided enquiries. A judicially trained independent mind duly assisted by officers who are well acquainted with the security considerations and the pursuant to our earlier order would be best placed to 13. We therefore deem it appropriate to appoint an Enquiry ii. Director General or his nominee not below the rank of Inspector General of Police of National Investigation iii. Director General of Police Union Territory of Registrar General Punjab and Haryana High Court 14. The following are the Terms of Reference for the Enquiry ii. Who are responsible for such a breach and to what safety and security of other Constitutional Any other incidental issue that the Committee may 15. The Enquiry Committee is requested to submit its report at 16. Let the entire record seized pursuant to our order dated 7th January 2022 be handed over to the Chairperson of the They shall be provided full secretarial assistance official car 18. Till conclusion of the proceedings of the Enquiry Committee constituted above the enquiries ordered by the Central Government and the State Government shall be kept in 19. List the matter after receipt of the Report of the Enquiry |
The right to be released on bail under Section 167 (2)(a) is an indefeasible right: Gauhati High Court | It is the legality and validity of the orders, which is the subject matter of challenge in the present proceeding. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Sanjay Kumar Medhi in the matter of Hanufa Nasrin Vs. The State Of Assam And Anr [Case No. : Crl.Pet./668/2021]. The facts of the case were associated with an application filed under Section 482 of the Cr.P.C. and challenged a series of orders from various dates passed by the learned Court of Sessions Judge, Barpeta. In one of that impugned orders, the petitioner was framed with charges and was again remanded to judicial custody. The petitioner’s bail plea was rejected too. Similarly, the various pleas for bail were rejected. The petitioner was arrested in connection to the case under Section 302 of the IPC. A default bail was granted to him but he was not in a position to arrange the surety and other formalities. The petitioner sought bail after getting arrested. On 28.05.2021 the said bail was considered and it was found that the final form was yet to be submitted and also the mandatory period was over, the petitioner was allowed to go on bail of Rs.10,000/-. However, the said prayer was rejected by the learned CJM, Barpeta. It was stated that the main cause of the present proceeding was to find the legality and validity of the orders. A case reference of AIR Online 2020 SC 607: S. Kasi Vs. State was submitted wherein the Hon’ble Supreme Court stated that denial of bail by submitting that due to restrictions imposed during the lockdown, charge sheet could not be submitted within the prescribed period was clearly erroneous and not in accordance with the law. The Hon’ble Court examining all the submissions held that “ In view of the above, the present application is allowed and the impugned orders dated 30.09.2021, 26.10.2021 and 11.11.2021 are set aside. Since, it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM, Barpeta while granting default bail vide the order dated 28.05.2021, the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and / or not indulge any activities detrimental to the same.” | Page No.# 1 4 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet. 668 2021 HANUFA NASRIN D O HANIF ALI CHOUDHURY R O HOWLY TOWN WARD NO. 3 P.S. HOWLY DIST. BARPETA ASSAM PIN 781316 THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM S O ABDUL MALEK R O CHAPRA P.S. BARPETA ASSAM PIN 78130 Advocate for the Petitioner : MR. S C BISWAS Advocate for the Respondent : PP ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Date of hearing & judgment : 23.11.2021 Judgment & OrderPage No.# 2 4 Heard Shri S.C. Biswas learned counsel along with Shri F.A. Hassan learned counsel for the petitioner. The respondent No. 1 State is represented by Shri R.J. Baruah learned Additional Public Prosecutor Assam. Though the informant has been arrayed as the respondent No. 2. In view of the settled law holding the field this Court is of the view that no notice is required to be issued to the respondent No. 2. In fact the time which would be consumed for such notice to be served immense prejudice would be suffered by the 2. The instant application has been field under Section 482 of the Cr.P.C. challenging a series of orders namely orders dated 30.09.2021 26.10.2021 and 11.11.2021 passed by the learned Court of Sessions Judge Barpeta in Sessions Case No. 129 2021. By the impugned order dated 26.10.2021 while framing charges against the petitioner he was again remanded to the judicial custody till 11.10.2021 on the same date the petition filed for releasing the petitioner on bail has been rejected. By the second order dated 26.10.2021 the prayer for bail has been rejected with the observation that the offence was grave and the evidentially material in the record and the quantum of punishment likely to be inflicted upon the accused if she is convicted do not justify the grant of bail. By the order dated 11.11.2021 the petition filed on behalf of the petitioner for allowing to submit the bail bond pursuant to the order of the learned CJM granting bail has been rejected on the ground that trial has already commenced and bail petition filed before that Court was rejected. 3. It is the case of the petitioner that in connection with Barpeta P.S. Case No. 413 2021 under Section 302 of the IPC the petitioner who was arrested had filed an application seeking bail. The said bail was considered on 28.05.2021 and coming to a conclusion that the Final Form was yet to be submitted and the mandatory period was over the petitioner was allowed to go on bail of Rs.10 000 with one surety of like amount It is the case of the petitioner that though default bail was granted to him he was not in a position to arrange the surety and other formalities and the same could be done only on 30.09.2021. However the learned CJM Barpeta had rejected the prayer by the aforesaid Page No.# 3 4 the present proceeding. 4. It is the legality and validity of the orders which is the subject matter of challenge in 5. Considering the settled law in subject this Court is of the opinion that the present petition is required to be disposed of at the motion stage itself as issuing notice would not serve any purpose and would rather be to the prejudice of the petitioner. 6. The law in this field is well settled by a number of Judgments by the Hon’ble Supreme Court as well as various High Courts. The provision of bail as laid down in Section 167 of the Cr.P.C. has been held to be a mandatory provision and has been termed as the “default bail” It has been settled that if the investigation is not over and the charge sheet is not able to be filed within the prescribed period depending on the nature of the offence the accused would be entitled to the privilege of default bail. In this connection the following case laws may be referred to: Maharashtra i. AIR 2001 Supreme Court 1910 : Uday Mohanlal Acharya Vs. State of ii. AIR Online 2020 SC 607: S. Kasi Vs. State 7. In the case of Uday Mohanlal Acharaythe Hon’ble Supreme Court has held that the right to be released on bail under Section 167Provisois indefeasible right and subsequent filing of charge sheet does not distinguish the right accrued by an accused to be released on bail. 8. In the case of S. Kasithe Hon’ble Supreme Court has reiterated the aforesaid position of law. In fact the Hon’ble Court has held that denial of bail on the ground that charge sheet could not be submitted within the prescribed period due to restrictions imposed during lockdown is clearly erroneous and not an accordance with law. 9. In the instant case it is seen that indeed the petitioner was granted default bail by the learned CJM Barpeta vide the order dated 28.05.2021. However due to the fact that the petitioner could not arrange the surety and other formalities he was not released from custody. However once the formality is fulfilled including the bail bond the learned Court was Page No.# 4 4 clearly in error holding that since the charge sheet has been filed in the meantime the provisions of default bail would not be applicable. The said finding is not on the erroneous but against the settled law laid down by the Hon’ble Supreme Court while interpreting the provisions of the Section 167of the Cr.P.C. as indicated above. 10. In view of the above the present application is allowed and the impugned orders dated 30.09.2021 26.10.2021 and 11.11.2021 are set aside. 11. Since it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM Barpeta while granting default bail vide the order dated 28.05.2021 the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and or not indulge any activities detrimental to the same. JUDGE |
Ingredients of Section 498 A IPC should be proved beyond reasonable doubt for conviction: Supreme Court of India | The ingredients of Section 498A IPC have to be proved against the accused by the prosecution beyond reasonable doubt to upheld conviction. This was held in the case of Nimay Sah v. State of Jharkhand, [Criminal Appeal No.211 of 2011], by Hon’ble Justice N.V. Ramana in the Supreme Court of India. The deceased in the present case was married to the accused. She was harassed for the demand of dowry of Rs.10000 by the accused persons. Devendra Shah who is the complainant and father of the deceased went to her matrimonial home to pacify the in-laws and assured them of the payment of the said amount. Eventually, when the harassment did not stop, the complainant sent his son, to the deceased’s matrimonial home who brought her back to her parental home. The day on which the event happened, the accused husband went to the deceased’s parental home and took her for a morning walk. When confronted about the whereabouts of the deceased, he said that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was ultimately found dead, near the canal with strangulation marks on her neck. An FIR was registered against the accused persons under Section 304B read with Section 109 IPC. The Trial Court relying upon the submissions of the prosecution convicted the accused persons under Sections, 304, 498, and 34 IPC. the accused person appealed before the High Court. The High Court on analysis of evidence found it to be consistent and corroborative, thereby, confirmed the judgment and order of conviction passed by the trial Court. On an appeal filed by the original accused before the Supreme Court, the counsel for the appellants submitted that the prosecution story comprises vague allegations, unsubstantiated by evidence. The learned counsel appearing on behalf of the respondent state stressed the fact of concurrent conviction and argued that there existed sufficient evidence to prove the culpability of the appellant-accused. The Court observed that apart from these vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of these witnesses. Additionally, the brother of the deceased has admitted in his cross-examination that the deceased used to write him letters from her matrimonial place and none of them mention any harassment on account of the demand of dowry. Thus the ingredients of Section 498 IPC have not been proved against the accused beyond a reasonable doubt, there is nothing on record to convict the appellantaccused for the charge under Section 498A IPC. The order passed by the High Court was set aside and the appellant-accused was acquitted of all charges. Click here to view the Judgment | JUDGMENT This appeal arises out of the impugned judgment No. 235 1998 45 1998 dated 09.05.2001 and upheld the The present appeal pertains to Nimay Sah accused no.3 who is the elder brother of the deceased’s husband Gora Sah accused no.1. The present appellantaccused has suffered conviction along with accused no.1 Gora Sah husband of the deceased and accused no.2 Nitai Sah father The deceased Asha Kumari had been married to accused no.1 Gora Sah and had been living in her matrimonial home. As per the prosecution story she was harassed for demand of dowry of Rs. 10 000 by the accused persons. This demand was originally made to her father Devendra Sah the complainant at the time of her vidai ceremony. Owing to her complaints of harassment her father Devendra Sahwent to her matrimonial home to pacify her inlaws and the harassment did not stop the complainant sent his son Accused no.1 Gora Sah husband of the deceased went to deceased’s parental home on 18.02.1998. On the fateful day i.e. 20.02.1998 he took the deceased for a morning walk. Having come back alone after an hour he hurriedly packed his belongings to leave. When confronted about the whereabouts of the deceased he said that the soon. He left thereafter. When the deceased did not return she was ultimately found dead near the canal with strangulation marks on her neck. An FIR was registered against the accused persons under Section 304B read with A read with Section 34 IPC and Section 304B read with Section 313 CrPC denied all the evidence tendered by the court relying upon the prosecution version convicted the consistent and corroborative thereby confirmed the judgment persons has been confirmed accused no.3 Nimay Sah The learned counsel on behalf of the appellant the prosecution story comprises of vague allegations unsubstantiated by evidence. The entire family of accused no.1 Gora Sah husband of the deceased has been roped in this case. Thus the conviction of the appellantaccused Heard the learned counsel for the parties through the time of vidai ceremony and subsequently harassment on testimonies of Shyam Sunder SahMunna SahChampa Devi and Devendra Sah to uphold 10 000 . However in his deposition the appellantaccused is and their family members. Apart from this witness Shyam Sunder Sah Munna Sah and Champa Devi P.W.9) depose that the deceased was being troubled at her It ought to be noted that apart from these vague allegations no specific instance of hostile attitude or these witnesses. Further Shyam Sunder Sahbrother of the deceased has admitted in his crossexamination that place and that none of the letters mention any harassment All other independent witnesses have turned hostile and have not supported the prosecution story. In fact even Panchanan Sah who is the paternal uncle of the witnesses the ingredients of Section 498A IPC have not been In light of the above we are of the view that the conviction of the appellantaccused cannot be sustained Accordingly the judgment and order dated 11.02.2010 Appeal No. 176 of 2001 is hereby set aside and the The appeal is accordingly allowed in the aforementioned terms. Pending applications if any shall also |
The grant of relaxation in the past cannot constitute an unreasonableness necessitating the grant of an exemption in the present year also: High Court of Delhi | The executive may take a policy decision based upon prevailing circumstances for better administration, and to meet out the exigencies of time. The Court is called upon to consider the validity of such a decision only when a challenge is made before it. The grant of relaxation in the past was held by the Court not to constitute an arbitrariness or unreasonableness necessitating the grant of an exemption in the present year also. This was held in ISHA JAISWAL & ORS v. NATIONAL TESTING AGENCY (NTA) & ORS. [W.P.(C) 1464/2021] in the High Court of Delhi by a single bench consisting of JUSTICE PRATEEK JALAN. Facts are that the petitioners were candidates for JEE Mains conducted by respondent NTA in January and September 2020. They claim that they were unable to take the examination in the September 2020 session, or were not able to deliver satisfactory performances due to the Covid-19 pandemic. Petitioners are unable to appear in 2021 of examination due to the eligibility conditions and have filed a writ against the same. The petitioners submitted that an additional opportunity to appear in the examination this year should be granted as they claim their inability to secure a satisfactory result in 2020 was due to factors beyond their control. That relatively small number of last-attempt candidates would not lead to any material detriment to other candidates in the 2021 examination. The counter-affidavit has been filed by the NTA, it has been contended that the NTA has taken a policy decision in which the interference of the writ court is not warranted. The court made reference to the judgment of Apex court in the case of Union of India & Others vs. M. Selvakumar & Another., wherein it was observed that “the well-settled principle that interference by the writ Court in policy decisions is permissible only for a very limited purpose, i.e. in the event, the policy is found to be absolutely capricious, totally arbitrary or not informed of reasons”. The court also made reference to the judgment of Apex Court in Rachna & Ors. vs. Union of India & Anr, “policy decisions which had been taken by the executive on earlier occasions of which a reference has been made always depend on the facts and circumstances at the given point of time and has to be tested independently in the circumstances in which it has been exercised by the competent authority”. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 21st May 2021 W.P.(C) 1464 2021 ISHA JAISWAL & ORS. Through: Ms. Shruti Dixit Advocate Petitioners NATIONAL TESTING AGENCY NTA) & ORS. Respondents Through: Ms. Seema Dolo Advocate for R 1. Mr. Sushil Kumar Pandey Sr. Panel Counsel for R 2 & 3. HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN J.video conferencing. The proceedings in the matter have been conducted through The petitioners were candidates for admission to engineering colleges through the Joint Entrance Examination[hereinafter “JEE Mains”] conducted by respondent no. 1 National Testing Agency in January and September 2020. They claim that they were unable to take the examination in the September 2020 session or were not able to deliver satisfactory performances therein due to circumstances arising out of the Covid 19 pandemic. The JEE Mains of the year 2021 are now in progress. The W.P.(C) 1464 2021 petitioners however are unable to appear in the 2021 edition of the examination due to the eligibility conditions which render the 2020 examination their last attempt. They seek an additional opportunity to appear in the examination this year as they claim their inability to secure a satisfactory result in 2020 was due to factors beyond their In the year 2020 the two sessions of the JEE Mains were originally scheduled to be held in January and April 2020. A candidate is permitted to take the examination in one or both sessions. Out of the eight petitioners six of them appeared in both the sessions. Petitioner no. 1 appeared in one attempt and petitioner no. 4 was unable to appear in either of the two attempts. For the 2021 examination the NTA proposed to hold the examination in four sessions in February March April and May 2021. Factually the examinations scheduled for the February and March 2021 sessions were held and the examination for April and May 2021 sessions have been postponed due to the pandemic. The eligibility conditions for the JEE Mains 2021 are set out in the Information Bulletin published by the NTA. The conditions which come in the way of the petitioners from appearing in the 2021 examination are as follows: “3.1 Age Limit For appearing in the JEE 2021 there is no age limit for the candidates. The candidates who have passed the class 12 equivalent examination in 2019 2020 or appearing in 2021 irrespective of their age can appear in JEE 2021 examination. However the candidates may be required to fulfil the age criteria of the Institute(s) W.P.(C) 1464 2021 in which they are desirous of taking admission. 3.3 Year of Appearance in Qualifying Examination Only those candidates who have passed Class 12 equivalent examination in 2019 2020 or 2021 or those who are appearing in Class 12 equivalent examination in 2021 are eligible to appear in JEE2021. Candidates who passed Class 12 equivalent examination in 2018 or before as well as those who will appear in such examination in 2022 or later are not eligible to appear in JEE2021. Candidates must note that the IITs permit only two attempts for the JEEi.e. a candidate should have appeared the Class XII examination for the first time in either 2020 or 2021 subject to the condition of not having been admitted at an IIT on an earlier occasion. Details may be obtained from the Information Brochure of the JEE 2021. Please see link: https: home.iitd.ac.in news jab.php All the petitioners in the present case had passed their Class XII equivalent examination prior to 2018 and are therefore ineligible for the JEE Mains 2021. The writ petition cites various reasons in support of their claim for an additional attempt including Covid 19 infections to the candidates and or their families severe floods in some parts of the country lack of transport due to lockdowns financial stress due to loss of livelihood and mental stress and agitation in the unprecedented circumstances of the pandemic. On this basis the petitioners seek the following reliefs: W.P.(C) 1464 2021 “A. Issue an appropriate writ order or direction in the nature thereof directing the Respondent No. 1 and 2 to grant compensatory extra chance to the Petitioners to register and appear in the JEE Main the months of being conducted February March April and May in 2021 B. C. Issue an appropriate writ order or direction in the nature thereof and grant compensatory extra chance to the Petitioners having their last attempts to undertake the JEE Mains 2020 to register and appear in at least 3 out of the 4 attempts in the current year JEE Mains in 2021 Issue appropriate writ order or direction in the nature thereof directing the Respondents to allow the Petitioners to apply and register for the forthcoming JEE Mains 2021 D. Pass appropriate directions to the concerned authorities for making necessary arrangements to Petitioners herein the JEE Mains 2021 enabling E. Pass any other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of In the counter affidavit filed by the NTA it has been contended that the NTA has taken a policy decision in which the interference of the writ court is not warranted. The petitioners having chosen not to challenge the eligibility conditions contained in the Information Bulletin and in facthaving participated in the examination the NTA has urged that the relief sought by them would be to the detriment of other candidates. Factually it has been averred that during the NTA made special arrangements to mitigate W.P.(C) 1464 2021 the hardship caused to Covid affected candidates it created a dedicated e mail account to which such candidates were directedto submit their grievances. 59 candidates approached the NTA in this respect and a further examination was conducted on 24.09.2020 in which 52 of those 59 candidates participated. The decision of the Supreme Court dated 24.02.2021 in W.P.(C) 1410 2020 has been annexed to the counter affidavit wherein the Supreme Court declined an additional opportunity in favour of candidates whose last attempt for the UPSC examination was in the year 2020. I have heard Ms. Shruti Dixit learned counsel for the petitioners and Ms. Seema Dolo learned counsel for the NTA. 10. Ms. Dixit has taken me to the contents of the writ petition and urged that in the circumstances mentioned therein the petitioners ought to be granted one further attempt to clear the JEE in 2021. She submits that relatively small number of last attempt candidates would not lead to any material detriment to other candidates in the 2021 11. Ms. Dolo learned counsel for the NTA on the other hand cited extensively the judgment of the Supreme Court in Rachna which according to her renders the petitioners’ case untenable. Ms. Dolo states that the petitioners did not approach the help desk of the JEE Mains examination in time and were therefore unable to participate in the examination on 24.09.2020. They in fact approached the JEE help desk only in October 2020 after the special examination had already been conducted. W.P.(C) 1464 2021 12. Having heard learned counsel for the parties and considered the judgment of the Supreme Court in Rachna I am of the view that the relief sought by the petitioners in this case cannot be granted. Ms. Dolo is right in contending that the principal arguments raised in the present petition are very much akin to the submissions rejected by the Supreme Court in Rachna. 13. The question which arose in Rachna related to the Civil Services Preliminary Examination conducted by the Union Public Service Commission on 04.10.2020. The petitioners before the Supreme Court were candidates who were barred from future attempts due to the limitation on the age of candidates or on the number of attempts. The Court noted the submissions that the imposition of the lockdown in March 2020 had led to impediments in preparation for the examination difficulties in transportation etc. The Court however ultimately accepted the contention of the respondents inter alia to the effect that the grant of additional time to the candidates who had already crossed the bar of the last attempt would be to the detriment of the candidates appearing in the next ensuing session of the examination. 14. The Supreme Court after noticing the impact of the pandemic on every individual of the society held as follows: “33. The syllabus of the preliminary examination has not changed since 2015 and after the Rules 2020 were notified by the 1st respondent for Civil Services Exam 2020 the notice in the first instance was published on 12th February 2020 and the scheduled date W.P.(C) 1464 2021 of the examination was fixed on 31st May 2020 but because of the unprecedented situation of Covid 19 pandemic the Commission took a policy decision to defer the examination and in the changed situation after there was a relaxation in the lockdown ultimately on 5th June 2020 took a decision to hold the examination on 4th October 2020 and therefore instead of three months the candidates got additional five months to which one ordinarily can prepare for appearing in the examination in terms of the scheme of Rules 2020. 35. This court cannot lose sight of the fact that apart from the present Examination 2020 it has been brought to the notice of this Court that remedial measures were adopted for the candidates who had participated in the various examinations recruitment tests held for Central services by the Commission at the given point of time during the Covid 19 pandemic and apart from that the State Commissions recruiting agencies must have conducted their examinations recruitment tests for various services and merely because the present petitioners made a complaint to this Court cannot be taken into isolation for the purpose of seeking additional chance attempt in the backdrop of Covid 19 pandemic which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations recruitment tests held by the State Commissions or by other recruiting agencies and by and large every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit attempt which is otherwise not permissible under the scheme of Rules 2020. 36. So far as the instant case is concerned there are limited attempts for the candidates who appeared in the general category and the scheme of Rules 2020 does not W.P.(C) 1464 2021 provide any discretion to the 1st respondent to grant relaxation either in attempt or in age and any exercise of discretion which does not vest with the 1st respondent if exercised may go in contravention to the scheme of Rules 2020. 37. Taking note of the order of this Court dated 30th September 2020 passed in Writ Petition(Civil) No. 1012 of 2020 in the earlier proceedings this Court has shown some sympathy for the candidates who were having their last attempt and were also likely to become age barred for next examination if any indulgence could be shown to them. In compliance of the order of this Court the 1st respondent has made endeavour to find out a way which is possible to give solace to such candidates and placed it before this Court that too with reservation that there is a possibility in providing one extra attempt for the candidates who had availed the last and final attempt in Examination 2020 provided respective age brackets as provided under Rule 6 of the Rules 2020. After the proposal was placed on record even the petitioners intervenors inter se made their submission to the Court that the proposal which has been placed by the 1st respondent for consideration of this Court according to them is discriminatory and is in violation of Article 14 of the Constitution. they are within 38. We do find substance in what being urged by learned counsel for the petitioners inter se in questioning the decision placed by 1st for our consideration. If an additional attempt remains restricted to the last attemptees for the reason that they had suffered during Covid 19 pandemic all attemptees irrespective of the nature of attemptwho appeared in Examination 2020 must have faced the same consequences as being faced by the writ petitioners and each one of them have suffered in one way or the other during the Covid 19 pandemic. At the same time this reasoning would equally apply to those who have crossed the upper age barrier. More so when no discretion is left W.P.(C) 1464 2021 with the 1st respondent to grant relaxation in the age bracket to the candidates other than provided under Rule 6 of the scheme of Rules 2020 which indeed the present petitioners are not entitled to claim as a matter of right and that apart those who have withdrawn their forms either because of lack of preparation or because of some personal reasons but have crossed the upper age limit to appear in CSE 2021 they would also be equally entitled to claim and no distinction could be made whether the candidate has appeared in the Examination 2020 and availed the last attempt or attempts is still available at his disposal or has crossed the upper age limit. 39. We do find substance that any concession either in attempt or age is not available under the scheme of Rules 2020 at the same time proposal which has been placed by the 1st respondent before us apart from complaint made inter se by the petitioners intervenors themselves of being discriminatory in character we are also of the view that it is advisable to avoid this situation and any relaxation which is not permissible either in attempt or age under the scheme of Rules 2020 apart from being in contravention to the rules it may be discriminatory and it is advisable not to exercise discretion in implementing what being proposed by the 1st respondent in compliance of the order of this Court dated 30th September 2020. 40. The thrust of submission of learned counsel for the petitioners was that discretion has been exercised by the respondent as a matter of policy in the earlier selections and the present petitioners have a legitimate expectation that the Government must exercise its discretion to petitioners have Examination 2020 and their right of fair consideration and effective participation in the selection process has been denied to them which is in violation of Articles 14 and 21 of the Constitution. situation which faced while appearing the unprecedented 41. The submission in our view is without substance W.P.(C) 1464 2021 for the reason that the policy decisions which had been taken by the executive on earlier occasions of which a reference has been made always depend on the facts and circumstances at the given point of time and has to be tested independently in the circumstances in which it has been exercised by the competent authority or the 1st respondent as in the instant case. “46. It has been brought to our notice that not only the petitioners intervenors before this Court but there are large number of candidates who appeared in the various examinations in the year 2020 during Covid 19 pandemic constraints impediments inconvenience in one way or the other and this Court can take a judicial notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of Covid 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies few who had participated in the Examination 2020 it will set down a precedent and also have effect on for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.” Emphasis supplied.) this Court shows in other streams W.P.(C) 1464 2021 15. Similar consideration would prevail in the present case also. In the case of the JEE Mains also there has been no change in the syllabus during the relevant period although Ms. Dixit states that the structure of the examination relating to the number of questions etc. has undergone some changes. As in the case of the CS exam the JEE Mains were also postponed due to the pandemic and remedial measures as submitted in the counter affidavit of NTA were adopted for Covid affected candidates. 16. The Supreme Court has negated the claim of candidates placed in substantially similar circumstances as the petitioners herein and has cautioned against interference with the policy decisions in this regard. Relying upon the observations in Union of India & Others vs. M. Selvakumar & Another 3 SCC 504 the Court has reiterated the well settled principle that interference by the writ Court in policy decisions is permissible only for a very limited purpose i.e. in the event the policy is found to be absolutely capricious totally arbitrary or not informed of reasons. 17. Ms. Dixit has sought to distinguish the aforesaid judgment of the Supreme Court on the ground that the CS exam is an examination for entry into public service whereas the JEE is an examination for entrance into engineering colleges. I am unable to accept that this distinction renders the aforesaid judgment inapplicable to the present case. While the stage at which a candidate takes the JEE and the CS Exam are doubtless different the principle to be considered remains the same viz. whether the pandemic entitles a candidate whose last attempt was taken in 2020 to a further attempt. This question has been W.P.(C) 1464 2021 answered in Rachna. 18. Ms. Dixit’s second point of distinction is that in the CS exam a candidate is entitled to skip attempts subject to the maximum age bar and the maximum number of attempts that he or she might take whereas in the JEE the candidate having regard to the year in which he she completes the Class XII examination would not be able to skip the 2020 session and take a subsequent examination. I am afraid this submission is also untenable. The imposition of an age limit coupled with a maximum number of attempts as in the case of the CS exam is no different in principle from laying down a criterion based upon the year in which the candidate took the school leaving examination. In the case of the CS exam the candidate may choose when to take his her attempts subject to the age limit. In the JEE the only limitation is with regard to the time that has passed after the school leaving examination. The candidate can choose to take every attempt available to him her or to skip any attempts as they consider most beneficial to them. 19. Ms. Dixit has also raised the grievance that as far as the JEE Advanced) Examination is concerned the persons taking the last attempt in 2020 were granted an additional opportunity whereas the same was not done for the candidates in the JEE Mains Examination. Ms. Dolo on the other hand points out that the JEE Examination is taken only by those candidates who have secured a given cut off rank in the JEE Mains Examination. It is conducted by a different examining body and the number of candidates in the JEE Advanced) are much less than in the JEE Mains Examination. In the W.P.(C) 1464 2021 writ petition also it has been pointed out that several other examinations were postponed cancelled during the relevant period in 2020. These facts are also insufficient to entitle the petitioners to relief in this petition. The fact that a different body had made a different decision for a different examination does not render the policy decision of the NTA arbitrary or unreasonable in the facts of the present case. The observations of the Supreme Court in paragraph 45 of the judgment in Rachna make it clear that the executive may take a policy decision based upon prevailing circumstances for better administration and to meet out the exigencies of time. The Court is called upon to consider the validity of such a decision only when a challenge is made before it. The grant of a relaxation in the past was held by the Court not to constitute an arbitrariness or unreasonableness necessitating the grant of an exemption in the present year also. For similar reasons the policy decision taken by the testing body in the case of the JEE Examination cannot render the present decision arbitrary or unreasonable. The Supreme Court has also cautioned against a decision which would have a cascading effect on all other examinations which took place in 2020. 20. For the aforesaid reasons I am of the view that the present petition is covered against the petitioners by the decision in Rachna supra). 21. The petition is therefore dismissed. No order as to costs. MAY 21 2021 ‘hkaur’ W.P.(C) 1464 2021 PRATEEK JALAN J |
Property suit involving question on matrimony can’t be maintained in Munsif court: High court of Kerala | Any case which involves a major legal question of determining the validity of a matrimonial relationship cannot be decided by a court other than a family court as per Section 7(1) (d) of the Family Courts Act. This was held and reiterated by Hon’ble Justice T.V. Anilkumar in a land dispute case of Jaminimol v Federal Bank of India and Ors. [OP (C) No. 1807 of 2015] in the High Court of Kerala. The facts of the case are such that a property was mortgaged by a man, now deceased, in favor of The Federal bank of India for default in repayment of loan to the bank. This bank is the first defendant in the instant case. This aforementioned property was then sold by the other defendants of this case who claim to be the legal heirs of the deceased man at an auction as per the procedure laid down in the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest act, 2002 [SARFAESI Act}. The petitioner, on the other hand, asserts that as a legally wedded wife of the deceased, she and her son are the rightful heirs of the property and without their consent the property could not be sold. A petition in this regard was filed at the Munsif court which was dismissed on grounds of being unmaintainable in that jurisdiction. This writ petition was filed in response to the order given by the Munsif after invoking Article 227 of the Constitution. The contention of the plaintiff is that the sale deed executed Is null and void because she is the sole legally wedded wife of the deceased and her son is the legal heir which makes them the sole property owners. The substantial question of law involved in the case presented to the high court is whether the order taken by the lower court of returning to the plaint for decision in the family court is legally sound or not. The reasoning put forth by the lower court is that a dispute which involves the issue of a matrimonial status can only be adjudicated by a Family court as per the provision is Section 7 of the Family Court Act. A close analysis of the facts of the case would reveal that any ascertainment of the validity of the sale deed is consequential upon the status of the petitioner. This status falls under the purview of matters dealing with matrimony which are the territory of a family court. This court examined the said provision and came upon the conclusion that a matter of such nature is excluded from the jurisdiction of a Civil Court. Due to these reasons, the order given by the lower court is devoid of any error as per the law. | IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 22ND DAY OF JANUARY 2021 2ND MAGHA 1942 OP(C).No.1807 OF 2015(O AGAINST THE ORDER DATED 06.04.2015 IN I.A.NO.2000 2014 IN O.S.NO.310 2014 OF MUNSIFF COURT PATHANAMTHITTA AGED 52 YEARS W O.LATE P.J.SURESH JAMINI NIVAS VENKURINJI KOLLAMULA VILLAGE RANNI TALUK NIRMAL SURESH AGED 12 YEARS MINOR REPRESENTED BY NEXT FRIEND MOTHER JAMINIMOL AGED 52 YEARS W O.LATE P.J.SURESH JAMINI NIVAS VENKURINJI KOLLAMULA VILLAGE RANNI TALUK PATHANAMTHITTA DISTRICT SMT.V.A.HARITHA SRI.P.A.MOHAMMED SHAH SMT.P.M.MAZNA MANSOOR SRI.K.NANDAKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SMT.UMA THE FEDERAL BANK LTD. ADOOR BRANCH REPRESENTED BY ITS CHIEF MANAGER SHIJU K.V. AGED 51 YEARS S O.K.P.VARGHESE CHETTUPUZHA PULLAZHI VILLAGE THRISSUR TALUK THRISSUR DISTRICT) PIN NIKIL SURESH AGED 25 YEARS NIKIL HOUSE ARUKALICKAL WEST VAYALA PARAKKADU VILLAGE ADOOR TALUK PIN 686587 NEETHU SURESH AGED 24 YEARS :2: NIKIL HOUSE ARUKALICKAL WEST VAYALA PARAKKADU VILLAGE ADOOR TALUK PIN 686587 PARVATHY PERME AGED 51 YEARS E 238 BARPANI BAZAR & VETERINARY COMPLEX NAHARULAUGN PAPUMPARE DISTRICT ARUNACHAL AGED 70 YEARS W O.JANARDHANAN PALICKAL THEKKETHIL VAYALA PARAKKADAVU VILLAGE ADOOR TALUK PIN 686587 AGED 51 YEARS S O.DAMODARAN NIRAVUKALAYIL VEEDU PATHIRAPALLI WARD KUDAPPANAKKUNNU VILLAGE THIRUVANANTHAPURAM TALUK THIRUVANANTHAPURAM DISTRICT PIN 695005 R1 BY ADV. SRI.PETER THARAKAN R2 5 BY ADV. SRI.C.K.KARUNAKARAN R6 BY ADV. SRI.A.B.MOHANAKUMAR THIS OP HAVING BEEN FINALLY HEARD ON 22.01.2021 THE COURT ON THE SAME DAY DELIVERED THE :3: Dated this the 22nd day of January 2021 JUDGMENT Ext.P8 order passed by Munsiff Court Pathanamthitta is under challenge in this proceeding initiated under Article 227 of the Constitution of India at the instance of the plaintiffs in O.S.No.310 2014 2. The first defendant Bank raised question of maintainability of suit and contended that it was not liable to be tried before the Munsiff Court inasmuch as the issue involved is liable to be dealt with under the provisions of the Family Courts Act 1984(for short the Act ). Upholding the contention of first defendant bank impugned order returning the plaint to Family Court was The suit was filed by the petitioners for declaring them as wife and son of the deceased P.J.Suresh and also for declaring sale deed dated 28.03.2014 in respect of suit property executed by defendant Nos.2 to 4 in favour of sixth defendant at the instance of first defendant are void and not binding on the :4: The plaint schedule property was mortgaged by late P.J. Suresh in favour of first defendant bank at the time of availment of loan When he committed default in repayment of the loan the first defendant proceeded under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002[SARFAESI Act) and brought the property to sale. During the course of the auction proceeding with the permission of the first defendant the property was sold to sixth defendant by defendant Nos.2 to 5 who claimed to be the children wife and mother of the deceased According to the petitioners the first petitioner is the legally wedded wife of the deceased P.J.Suresh and second petitioner is the son and they alone being the sole legal heirs are the property owners and consequently the sale deed executed in favour of the sixth defendant is null and void. In the suit the main relief that is sought is for declaring the first petitioner as the legally wedded wife of the deceased :5: The question that arises for consideration is whether the view taken by the court below ordering return of plaint to be presented before Family Court is legal. According to the court below the issue as to the matrimonial status of first plaintiff is a matter which could be adjudicated only by a Family Court having regard to the provisions in Section 7 of the Act. Having heard the learned counsel appearing on both sides I am of the opinion that the view taken by the court below appears to be correct and in accordance with law As per Explanation to Section 7(1)(b) of the Act a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person could be brought only before a Family Court and there is exclusion of jurisdiction of Civil Court in this respect The question as to whether sale deed in favour of sixth defendant is null and void is consequential upon the decision on the alleged status claimed by the first petitioner. Without deciding the question as to the status of first petitioner the validity as to the sale deed could not be decided :6: In that view of the matter in my opinion the suit could be said to be one falling under Explanation to Section 7(1)(d)of the Act as well inasmuch as the relief sought appears to be covered by that provision. The declaration of sale deed as being null and void could be said to be a question that emerges in the circumstances arising out of a matrimonial relationship. But for the dispute as to the matrimonial status claimed by the first petitioner the institution of the instant suit would not have occasioned. For all these reasons I am of the opinion that the impugned order of the court below returning plaint to be presented before Family Court is perfectly legal and it is not liable to be interfered with In the result original petition fails and it All pending interlocutory applications will P.A.To Judge PETITIONER S EXHIBITS :7: TRUE COPY OF THE PLAINT IN O.S.NO.310 2014 BEFORE MUNSIFF COURT TRUE COPY OF CERTIFICATE OF MARRIAGE ISSUED BY REGISTRAR OF MARRIAGE TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 27.04.2005 ISSUED BY THE SNDP TRUE COPY OF THE PASSPORT OF THE 1ST THE TRUE COPY OF THE PASSPORT OF THE TRUE COPY OF FIR NO.1272 2014 OF ADOOR A TRUE COPY OF THE PETITION FILED BY 1ST RESPONDENT IN I.A.2000 2014 OF THE COURT OF MUNSIFF PATHANAMTHITTA A TRUE COPY OF THE ORDER IN I.A.2000 2014 IN O.S.310 2014 DATED 6.4.2015 OF THE COURT OF MUNSIFF. RESPONDENTS EXHIBITS: NIL |
“There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities”: Sikkim High Court | Article 21 of the Indian constitution mandates for Right to life for every human being even if he/she is a convicted criminal. NHRC of India is set up to check any kind of violation of basic human right. In this case of State of Sikkim vs. National Human Rights Commission [W.P.(C) No. 46 of 2021] a writ petition was filed in front of Sikkim high court under article 226 of the Indian constitution. The petitioner had filed the writ petition in response to a show cause notice issued notice dated 13.01.2021 and orders dated 9.6.2021 and 14.9.2021, passed by the National Human Rights Commission (NHRC) in NHRC [Case No. 1/21/3/2020-jcd] relating to the suicide of an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi, as being arbitrary and illegal. The facts of this case were that the NHRC issued a show cause notice to the Chief Secretary of the petitioner stating, that the Commission had received intimation on 06.05.2020 from the Jailor, District Jail, Namchi, Sikkim, regarding suicide by the UTP Roshan Chettri in the prison on 04.04.2020. Further, the deceased UTP was a covid-19 positive patient and was in quarantine along with another UTP. On 04.04.2020, at 11 a.m., the deceased tried to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently, jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The show cause notice thereafter required the petitioner to show cause as to why monetary compensation of Rs.3,75,000/- should not be recommended under section 18(a)(i) of the Protection of Human Rights Act, 1993, to be paid to the next of kin of the deceased Roshan Chettri. The petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the learned Judicial Magistrate, South Sikkim at Namchi. The petitioner is aggrieved that in spite of the dismissal of W.P.(C) No. 02 of 2021 by this court, the NHRC has passed the impugned orders which was barred by the principle of res judicata; that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights. It is further argued that merely because suicide took place during the day, it does not in any manner corroborate or substantiate that there was any negligence on the part of the police authorities. The learned High court judge, Justice Bhaskar Raj Pradhan relying on various precedence and case laws held that; It is quite evident that the Commission was of the firm view on both facts and law. The fact that the UTP committed suicide during the day at 11:10 a.m. in the jail is not disputed by the petitioner. The NHRC records that “ensuring the safety and security of the inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned”. This cannot be disputed. It is quite obvious that had the jail authorities been vigilant enough, as observed by the NHRC, this incident could have been avoided and the precious life would have been saved. The State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail. There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities. The court held that “Having examined each of the grounds raised by the petitioner, this court is of the considered view that the present writ petition is misconceived and is liable to be dismissed.” Hence, the writ petition was dismissed. | THE HIGH COURT OF SIKKIM: GANGTOK CIVIL EXTRA ORDINARY JURISDICTION) Single Bench: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.(C) No. 421 State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok East Sikkim. .... Petitioner Versus National Human Rights Commission Through the Secretary General National Human Rights Commission Manav Adhikar Bhawan Block C GPO Complex INA New Delhi 110023. .... Respondent Petition under Article 226 of the Constitution of India Mr. Hissey Gyaltsen Assistant Government Advocate for the JUDGMENT03.12.2021) Bhaskar Raj Pradhan J. Heard Mr. Hissey Gyaltsen learned Assistant Government The State of Sikkim has preferred this writ petition under Article 226 of the Constitution of India seeking a writ for setting aside the show cause notice dated 13.01.2021 and orders dated 9.6.2021 and 14.9.2021 passed by the National Human Rights Commission NHRC) in NHRC Case No. 1 21 3 2020 jcd relating to the suicide of 2 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission an under trial prisonerRoshan Chettri in District Jail Namchi as being arbitrary and illegal. On 13.01.2021 the NHRC issued a show cause notice to the Chief Secretary of the petitioner stating inter alia that the Commission had received intimation on 06.05.2020 from the Jailor District Jail Namchi Sikkim regarding suicide by the UTP Roshan Chettrison of Shri Dilip Chettri in the prison on 04.04.2020. The show cause notice also records that the Investigation Division of NHRC after collecting analyzing relevant reports records has submitted that the deceased UTP was a covid 19 positive patient and was in quarantine along with another UTP. On 04.04.2020 at 11 a.m. the deceased made an attempt to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The inquest and the Post Mortem Examination revealed no injury on the body of the deceased other than ligature marks the cause of death was asphyxia due to hanging. The Magisterial Enquiry Report conducted by the learned Judicial Magistrate South Sikkim Namchi concluded that no medical negligence and foul play was found in the death of the deceased and that he committed suicide by hanging. 3 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission The show cause notice further recorded that vide direction dated 11.12.2020 the Commission after considering the relevant reports had considered and directed as under: “Prima facie the deceased committed suicide in day time i.e. at 11:10 AM. Ensuring the safety and security of inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned in which it failed. Had the prison authorities been vigilant enough incident could have been avoided and the precious life would have been saved. Hence the State is vicariously liable to compensate the next of kin of the deceased under trial prisoner.” The show cause notice thereafter required the petitioner to show cause as to why monetary compensation of Rs.3 75 000 should not be recommended under section 18(a)(i) of the Protection of Human Rights Act 1993 to be paid to the next of kin of the deceased Roshan Chettri. On 05.03.2021 the petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the learned Judicial Magistrate South Sikkim at Namchi. The petitioner also forwarded the following documents to the NHRC: The detailed report of DIGP State Central Prison Rongyek received vide letter dated 25 02 2021 Letter to the Ld. CJM South District by the Jailer commission of suicide by UTP Roshan Chhetri final enquiry report of Ld. JM Namchi u s 176 of Cr.PC. 1973 Jail Namchi iv) Warrant of Commitment to Judicial Custody Report submitted to the Sikkim Human Rights Commission First Information Report vi) 4 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission Inquest Form u s 174 of Cr.PC of Namchi Police Station Inquest Report u s 176 of Cr.PC of Judicial Magistrate Namchi Post Mortem Report of the deceased Roshan Chettri Statement of witnesses taken by the Police Final Report of a reported case of unnatural deadu s 174 of Cr.PC. 1973.” In the meanwhile Dilip Chettri father of the deceased Roshan Chettri filed a Writ Petition No. 02 of 2021 under Article 226 of the Constitution of India. The writ petition prayed for a direction upon the state respondents to pay compensation to the tune of Rs.20 00 000 as well as for an independent investigation of the incident of the alleged suicide by a retired judge or a government officer or any other person as deemed fit. The writ petition was taken up on 12.03.2021 by the learned Single Bench of this court and the following order was passed: “After hearing Learned Counsel for the Petitioner and duly considering the matter this Writ Petition deserves to be and is dismissed in limine.” Thereafter the NHRC vide communication dated 09.06.2021 addressed to the Chief Secretary of the petitioner informed that the Commission on 09.06.2021 had directed as follows: “ .. In the instant case the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi Sikkim regarding suicide by under trial prisoner Roshan Chhetari S o Dilip Chhetrari in the prison on Vide proceeding dated 24.04.2021 the Commission observed and directed as under 5 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission the part of “Pursuant to the directions of the Commission letter dated 05.03.2021 has been submitted by the Joint Director Home Department Govt. of Sikkim who has submitted the detailed report Letter to Ld. CJM South District final enquiry report warrant of commitment to judicial custody to Sikkim Human Rights report submitted Commission First Information Report Inquest form and report post mortem report of the deceased statement of witnesses final report of a reported case of unnatural death U sec. 174 Cr.P.C. As per the attached detailed report of the DIGP State Central Prison dated 25.02.2021 the authority has relied upon the judicial enquiry and the final report filed by the P.S. Namchi which does not establish any negligence on administration district prison Namchi. The Commission has taken note of the contents of the show cause notice the reports reply submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11:10 AM so had the prison authorities been vigilant enough this incident could have been avoided and a precious life would have been saved. Hence the Commission is not inclined to its order of payment of monetary compensation of Rs.3 75 000 to the NoK of the aforesaid deceased UTP and hence confirms its The Chief Secretary Govt. of Sikkim is directed to the proof of payment of monetary compensation of Rs.3 75 000 Rupees Three Lakhs Seventy Five Thousand only) to the NoK of the deceased UTP within six weeks failing which the Commission will be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the authority concerned before the Commission.” The Commission observes that the requisite reports from aforesaid authority is still awaited. In normal circumstances such non responsive attitude towards direction of the Commission would have invited issuance of summons u s 13 of the PHR Act 1993 calling for his personal appearance before the Commission but in view of the pandemic situation in the country last opportunity is being given to the Chief Secretary Govt. of Sikkim for submission of requisite compliance report along with proof of payment within four weeks failing 6 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission which the Commission would be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the On 16.07.2021 the petitioner wrote to the NHRC informing them inter alia that a Writ Petition No. 02 of 2021 was filed by the father of the deceased before this court on 09.03.2021 praying for compensation which came up for hearing on 12.03.2021 and this court after hearing the learned counsel for the petitioner dismissed it in limine “on merit of the case and duly considering the matter”. The petitioner thus urged the NHRC that the petitioner may be exempted from payment of compensation as the proceeding before the NHRC was barred by the principle of res judicata. 10. 14.09.2021 the NHRC made communication to the Chief Secretary of the petitioner stating that on that day the Commission directed as follows: “The present matter pertains regarding death of UTP Roshan of District Jail Namchi Sikkim. In continuation of earlier proceedings vide proceedings dated 26.07.2021 this Commission has observed directed as under: “In the instant case the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi Sikkim regarding suicide by under trial prisoner Roshan Chhetari S o Sh. Dilip Chhetari in the prison on 04.04.2020. The Commission observes that the matter pending for want of compliance report along with proof of payment of monetary compensation of Rs.3 75 000 to be paid to the NOK of the 7 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission deceased UTP Roshan Chhetari S o Sh. Dilip Chhetari who committed suicide in the prison on 04.04.2020. Registry is directed to issue final reminder to the Chief Secretary Govt. of Sikkim for submission of compliance report along with the proof of payment within four weeks failing which the Commission shall be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the authority concerned before the Thus this Commission has sought the compliance the payment of monetary compensation of Rs.3 75 000 to the NOK of deceased UTP. Pursuant to same a report dated 16.07.2021 is received from Joint Director Sikkim vide which he has submitted that since the writ petition of the victim‟s father has already been dismissed by Hon‟ble Sikkim High Court the Commission shall review its order and State Govt. be exempted from the payment of compensation as directed by the NHRC. It is pertinent to observe here that vide proceedings categorically declined the request of review of concerned State Government. This Commission has observed that: “The Commission has taken note of the contents of the reports reply to the sow cause notice submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11.10 AM so had the prison authorities been vigilant enough this incident could have been avoided and a precious life would have been saved. Hence the Commission is not inclined to review its order of Rs.3 75 000 Rs. Three Lakhs Seventy Five Thousand only) to the NOK of the aforesaid deceased UTP Thus this plea of the concerned authority has already been declined. In view of same the Chief Secretary Govt. of Sikkim is recommended to pay the compensation to the NOK of deceased of Rs.3 75 000 and submit a report in this regard within eight weeks.” of monetary 8 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission 11. The NHRC vide the above communication requested the additional compete report as directed by Commission in the matter be sent latest by 19.11.2021 for further consideration by the Commission. 12. The petitioner aggrieved by the issuance of the show cause notice and the impugned orders dated 09.06.2021 and 14.09.2021 has approached this court on eleven grounds. 13. On perusal of the grounds and hearing the learned counsel it is clear that the petitioner is primarily aggrieved on five counts. The petitioner is aggrieved that inspite of the dismissal of W.P.(C) No. 02 of 2021 by this court the NHRC has passed the impugned orders which was barred by the principle of res judicata that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights that the NHRC could not have entertained the complaint under Regulation 9(xi) and 9(xii) of the National Human Rights Commission Regulations 1994 and that the NHRC did not consider the final inquiry report dated 20.05.2021 of the learned Judicial Magistrate and the final report of the Namchi Police Station. It is further argued that merely because suicide took place during the day it does not in any manner corroborate or substantiate that there was any negligence on the part of the 9 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission police authorities. Each of these grounds shall be considered 14. The admitted facts are that show cause notice was issued on 13.1.2021 the father of the deceased UTP Roshan Chettri filed W.P.(C) No. 021on 09.03.2021 which was dismissed in limine on 12.03.2021. The impugned orders were thereafter passed by the NHRC. 15. In Dario and others vs. State of Uttar Pradesh1 the Supreme Court held as under: raised by the preliminary objection “19. We must now proceed to state our conclusion respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which we have already indicated. If the petition is 1 AIR 1961 SC 1457 10 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32 because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. ..................................................................” 16. Thus it is clear that if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata and although prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all but in the absence of the speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata. In the present case this court is of the opinion that there is no such issue. The order passed by the learned Single Bench on 12 03 2021 clearly records that it was dismissed in fact in limine. The pronouncement of the learned Single Bench was absolutely clear. It was a dismissal in limine. In view of the clear 11 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission pronouncement of the Supreme Court the dismissal of the writ petition in limine does not act as res judicata against the proceedings before the NHRC. 17. The next point urged by the learned counsel is the show cause notice as well as the impugned orders not disclosing the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights. It is quite evident that the Commission was of the firm view on both facts and law. The fact that the UTP committed suicide during the day at 11:10 a.m. in the jail is not disputed by the petitioner. The NHRC records that “ensuring the safety and security of the inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned”. This cannot be disputed. It is quite obvious that had the jail authorities been vigilant enough as observed by the NHRC this incident could have been avoided and the precious life would have been saved. The State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail. There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities. It may not have been at the instance of any of the jail officers that the suicide was committed but the fact that the incident has happened inside the jail makes the petitioner vicariously liable. 12 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission The National Human Rights Commission Regulations 1994 as amended provides in Regulation 9 that in certain cases complaints are not ordinarily entertainable. It provides that the Commission may dismiss in limini complaints of various nature as enumerated below: “(i) illegible ii) vague anonymous or pseudonymous iii) trivial or frivolous iv) barred under section 36(1) of the Act v) barred under section 36(2) of the Act vi) allegation is not against any public servant vii) the issue raised relates to civil dispute such as property rights contractual obligations and the like viii) the issue raised relates to service matters ix) the issue raised relates to labour industrial disputes x) allegations do not make out any specific violation of human rights xi) matter is sub judice before a Court Tribunal xii) matter is covered by a judicial verdict decision of the Commission xiii) where it is only a copy of the complaint addressed to some other authority xiv) the matter is outside the purview of the Commission on any other ground.” 19. Regulation 9(xi) relates to matter which are sub judice before the court or tribunal. The admitted facts as pleaded do not reflect that the NHRC entertained the complaint when the matter was sub judice before this court. Regulation 9(xii) relates to matter which is covered by the judicial verdict or decision of the Commission. The arguments made by the learned counsel for the petitioner relates to the dismissal of the writ petition in limine which has already been discussed in detail above. Therefore even this ground does not help the petitioner’s case. 13 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission 20. The final inquiry report passed by the learned Judicial Magistrate South Sikkim Namchi relates to the procedure under section 176 of the Cr.P.C. and the final report of the Namchi Police Station relates to the procedure under section 174 Cr.P.C. Both did not deal with the issue before the NHRC. Consequently this ground is also devoid of merits. 21. Having examined each of the grounds raised by the petitioner this court is of the considered view that the present writ petition is misconceived and is liable to be dismissed. 22. It is accordingly ordered. 23. interlocutory application also Bhaskar Raj Pradhan ) Judge disposed of. Approved for reporting : Yes No : Yes No Internet |
Courts will be cautious in exercising inherent powers to interfere with a consent decree except when an exceptional or glaring error is recorded apparently: Supreme Court of India | Consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. The court would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases. This auspicious judgment was recently passed by the Supreme Court of India in the matter of COMPACK ENTERPRISES INDIA (P) LTD. V BEANT SINGH [Special Leave Petition (Civil) No. 22242225 of 2021] by Honourable Justice Mohan M. Shantanagoudar. These petitions arise out of judgments of the High Court dated 14.02.2019 and 25.07.2019 wherein by the first impugned judgment the High Court disposed of regular first appeal against the judgment and order of the Additional District Court Delhi whereas in the second impugned judgment the HC disposed of a Review Petition concerning the first judgment. The facts of the case are, the case was filed for possession of a ground floor property in G.T. Karnal Road, Industrial Area, Delhi. Beant Singh is the owner of the suit property and he through M/s Channa Auto Agencies Ltd., of which he is a Director, executed a license agreement in favour of M/s Compack Enterprises for a period of 30 months in consideration for a monthly license fee of Rs. 28,000/ (hereinafter, 2000 Agreement’). Later, Compack Enterprises merged with Compack Enterprises India (P) Ltd. and the agreement continued with mutual consent of the parties and was later renewed in 2006. However, after the expiry of this renewed agreement, the possession of the property was not relinquished and hence a suit was filed for recovery of possession and mesne profits. The HC held that the admission made by the parties justify decreeing the suit for possession and directed that the possession of the entire suit property is to be handed over to the respondent. However, in the review petition, it was contended that HC erred in recording terms of the consent decree since, the judgment recorded that the mesne profits be increased by 10% every 12 months, instead of 10% increase every 24 months and that the possession of the entire suit property measuring 5,472 sq. ft. will be handed over when the documents on record showed that only 2,200 sq. ft was in possession. The Court relied on Gariwala v. Union Bank of India (1992) 1 SCC 31 to state that, “A consent decree would not serve as estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Further, this Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise.“ Thus, the Court stated, “It is high time that the Petitioner stops making efforts to circumvent delivering possession of the suit property to the Respondent. The High Court was correct in upholding the terms of the consent decree directing Petitioner to hand over possession of the entire suit property of 5.472 sq. ft. to the Respondent, and we see no reason to interfere with this part of the consent decree.“ However, on the issue of mesne profits, the Court observed that “The learned Single Judge’s order has given rise to a lot of confusion. Given this background, and looking at the preponderance of probabilities, we are inclined to give the benefit of doubt to the Petitioner. Therefore, we hold that the intention of the compromise between the parties was that there should be a 10% increase in mesne profits every alternate year. The recording of a 10% increase after every 12 months in the consent decree was an inadvertent error, which we have now rectified.“ | These petitions arise out of judgments of the High Court of Judge Rohini dated 23.09.2017 in Suit No 58395 2016 filed by the Respondent. Whereas by the second Review Petition No. 177 2019 filed by the Petitioner against the Ground Floor G.T. Karnal Road Industrial Area Delhi110033 admeasuring 608 sq. yards (hereinafter ‘suit The Respondent Beant Singh is the owner of the suit in consideration for a monthly license fee of Rs. 28 000 hereinafter ‘2000 Agreement’). On 1.04.2003 Compack Enterprises merged with Compack Enterprises IndiaLtd.and the 2000 Agreement continued with license fee to Rs.30 800 praying for a judgment on admission the Trial Court’s dismissal of this application the Respondent High Court by its judgment dated 12.11.2014 reversed the Trial Court’s dismissal and held that the admissions made by the thus directed that the possession of the entire suit property 10. On the question of mesne profits the Trial Court noted that suit property has still not been handed over to the Respondent despite the High Court’s order dated 12.11.2014. Instead the a. What is the area of the suit property for which Petitioner is 5 472 sq. ft11 SCC 678 Suvaran Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors. 19. However this formulation is far from absolute and does not Gariwala v. Union Bank of India & ors. 1 SCC 31 has the compromise was vitiated by fraud misrepresentation or 20. The present Petitions thus must be answered in light of the that the first impugned judgment of the High Court dated the validity of that consent decree in the second impugned jurisprudence we would be cautious in exercising our inherent now refer to and answer the specific contentions raised by the Agreement the 2006 Agreement which is the relevant agreement for the present purposes pertains to the entire suit property and does not delimit the licensed area to a 2 200 sq. ft. portion. Thus the 2006 Agreement effective from 1.04.2006 to 30.09.2008 licensed the total area of 5 472 sq. ft. to Petitioner. Hence the 22. Further this question has already been settled by the High Court judgment dated 12.11.2014 in the earlier litigation for the entire area of 5 472 sq. ftNo. 1494 2015 in SLP(C) No 7531 2015 by orders dated 16.03.2015 and 15.07.2015 respectively. Thus this view has attained finality and the Petitioner’s efforts to reagitate this question in the present proceedings is a waste of this Court’s time and an abuse of the interest in the remaining 3 272 sq. ft. of the suit property there is no prejudice caused to the Petitioner by the order to vacate the 23. It is further an admitted position as recorded by the Trial Court that the Petitioner has not handed over possession to the Gosain instead in July 2015. This is despite the High Court’s judgment dated 12.11.2014 decreeing the suit for possession in a question pending in separate specific performance proceedings filed by him. Thus at this stage the Respondent is entitled to get possession of the suit property pending adjudication of Mr Gosain’s claims. This view attained finality as far back as on 12.11.2014 and it is high time that the Petitioner stops making entire suit property of 5 472 sq. ft. to the Respondent and we see 25. As referred to supra Shri Mukul Rohatgi learned senior to have while recording the terms of the consent decree recorded a 26. On the contrary Shri Basava Prabhu S. Patil learned senior of the late learned Single Judge appearing in para 1 of the first impugned judgment dated 14.02.2019 to mean that the mesne i.e from 1.10.2009 1.10.2011 etc etc” has confused not only himself but also the parties to the litigation year i.e. from 2009 to 2011 in the example used by the learned mesne profits after every 12 months. The aforementioned the consent decree to bring it in conformity with the intended 23.09.2017 and the final decree dated 15.11.2017 passed by the Trial Court also awards a 10% increase only on each alternative year i.e. 01.04.2011 01.04.2013 01.04.2015 and so on. Further incorporated a 10% increase in license fee once every 30 months 2.5 years. Thus the learned Single Judge’s order dated 14.02.2019 has given rise to a lot of confusion. Given this background and looking at the preponderance of probabilities we that there should be a 10% increase in mesne profits every alternate year. The recording of a 10% increase after every 12 29. To this limited extent the second impugned judgment dated the judgment dated 12.11.2014 which has now attained finality Gosain the Petitioner handed over possession to Mr. Gosain in property measuring 5 472 sq. ft. to the Respondent within eight weeks from today without fail. Further the Registry is directed to expeditiously release the arrears of mesne profits if any already deposited by the Petitioner before this Court to the Respondent The Petitioner is further directed to pay to the Respondent all arrears as directed in order dated 14.2.2019 with the limited by 10% every alternate year from 2009 till the date of handover of to the Respondent as stated in the impugned order dated |
Prosecutor cannot file a final report to defeat the default bail by the accused: Supreme Court | In the case of M. Ravindran versus The Intelligence Officer [S.L.P. (Criminal) No. 2333 of 2020], the Supreme Court of India observed that the right of the defaulter to default bail was enforceable even if the charge sheet or report seeking the extension of time was subsequently filed by the petitioner. The remarkable judgement was passed by the bench comprising Justice Umesh Lalit, Justice Mohan M. Shantanagoudar and Justice Vineet Saran who passed this remarkable judgement that where the accused has already applied for default bail, the Prosecutor cannot defeat the enforcement of his indefeasible right by subsequently filing a final report, additional complaint or report seeking extension of time. The appellant was under custody for the offence punishable under Section 8 (c) read with Sections 22(c),23(c), 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). After completion of 180 days from the remand, the applicant filed a bail application under section 167(2) of the CrPC before the special court for the exclusive trial of cases under the NDPS Act, on the ground that the investigation was not complete and the charge sheet had not yet been filed and was granted bail by the trial court. The respondent prayed before the Madras High Court to cancel the bail and the high court ordered the same. The appellant had duly completed his 180 days of tenure by the Gregorian calendar so the compulsory bail should be granted to him. This court recalled what was told in the section 167 (2) and said that “as it is granted on account of the default of the investigating agency in not completing the investigation within the prescribed time, irrespective of the merits of the case.” Also as per the section 36A of the NDPS Act the modifications could be done stating that if the investigation needs any extension of date, it would be allowed by the court but in the present case the Public Prosecutor did not file any such report within the 180 days for seeking extension of time up as it was required in this case. The court relied on the judgement disposed in the case of Ravi Prakash Singh @ Arvind Singh v. State of Bihar (2015) 8 SCC 340 that, “has ruled that while computing the period under Section 167(2), the day on which accused was remanded to judicial custody has to be excluded and the day on which challan/charge sheet is filed in the court has to be included” and in the present case the applicant waited for a time period of 180 days before the complainant could file against him. | The judgment dated 21.11.2019 passed in Crl. O.P. No Section 8(c) read with Sections 22(c) 23(c) 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 filed application for bail under Section 167(2) of the Code of Criminal Procedure 1973 on 01.02.2019 before the Special Court for Exclusive Trial of Cases under the NDPS Act Chennai on the ground that the investigation was not complete and chargesheet had not yet been filed. Accordingly on No. 131 of 2019 in R.R. No. 09 2017 pending before the said The Respondent complainant i.e. the Intelligence Officer Directorate of Revenue Intelligence filed Crl. O.P. No 9750 of 2019 before the High Court of Judicature at Madras the impugned judgment allowed the said appeal and consequently cancelled the order of bail granted by the Trial Court. Being aggrieved the Appellant has approached this Court of 180 days prescribed for filing of final report under Section 01.02.2019 at 10:30 a.m. before the Trial Court. During the arguments of the counsel for the Appellant to be precisethe Respondent complainant filed an additional complaint against the Appellant at 4:25 p.m. on 01.02.2019 and sought for has no power to intervene with the indefeasible right of the Section 167(2) CrPC was not disposed of by the time the additional complaint was filed the Appellant could not take the Appellant could not avail of any specific benefit for having filed the application at 10:30 a.m. inasmuch as the additional complaint was lodged during the course of hearing of the bail 4. Ms. Arunima Singh learned counsel appearing for the heavily on the observations of this Court in the case of Uday Mohanlal Acharya v. State of Maharashtra 5 SCC merits of the matter that the legislative mandate conferred by prior to filing of the chargesheet additional complaint by the Respondent and that subsequent filing of chargesheet Per contra Mr. Aman Lekhi learned Additional Solicitor General argued in support of the judgment of the High Court contending that the additional complaint was lodged while the Appellant was still in custody and prior to the disposal of the application for bail under Section 167(2) CrPC hence there was no question of the Appellantaccused furnishing the bail and Before we proceed further it is relevant to note the 2) The Magistrate to whom an accused person is not jurisdiction to try the case from time to time case or commit it for trial and considers further 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 i) ninety days where the investigation relates to an offence punishable with death imprisonment for life or offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused in custody of the police under this section unless the accused is produced before him in person for the first in the custody of the police but the Magistrate may c) no Magistrate of the second class not specially empowered in this behalf by the High Court shall declared that notwithstanding the expiry of the period person was produced before the Magistrate as required under clause the production of the accused person Provided further that in case of a woman under In common legal parlance the right to bail under the the investigating agency in not completing the investigation under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in subsection of section 167 of the Code of Criminal Procedure 1973 thereof to "ninety days" Provided that if it is not possible to complete the investigation within the said period of one hundred and up to one year on the report of the Public Prosecutor 6.2 Section 36A of the NDPS Act prescribes modified Clause of Section 36A NDPS Act is to require that investigation into certain offences under the NDPS Act be completed within a period of 180 days instead of 90 days as provided under Section 167(2) CrPC. Hence the benefit of additional time limit is given for investigating a more serious the Special Court may extend time prescribed for investigation up to one year if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of accused beyond the prescribed period of 180 days. In the matter on hand it is year for filing final report additional complaint before the Trial case the final report was required to be filed within 180 days This Court in a catena of judgments including Ravi Prakash Singh @ Arvind Singh v. State of Bihar 8 SCC 340 has ruled that while computing the period under Section 167(2) the day on which accused was remanded to judicial custody has to be excluded and the day on which 8. As mentioned supra it is not disputed that in compliance of the aforementioned statutory provisions and judgments of this and thereafter filed application for bail under Section 167(2) CrPC at 10:30 a.m. on 01.02.2019 complainant had not yet filed final report additional complaint against the Appellant. On the same day as mentioned supra during the course of hearing of the bail application the the appellant under Section 167(2) CrPC additional complaint by the investigating b) Whether the Court should take into consideration the time of filing of the investigating agency or the time of disposal the application for bail 10. Upon perusal of the relevant jurisprudence we are unable being filed if already not availed of as has been held by the Constitution Bench in Sanjay Dutt s case supra). The crucial question that arises for consideration therefore is what is the true meaning of the expression if already not availed of Does it mean his willingness for being released on bail or does it mean that a bail order must be passed the accused with the legislative mandate to hold that an accused actually being released on bail after furnishing the proviso to Section 167(2) of the Criminal Procedure legal inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart when an specified period there is no discretion left in the that the accused must factually be released on bail then in a given case where the Magistrate illegally pending in the higher forum for consideration if the right accruing to the accused because of inaction on the part of the investigating agency would get to negate the same by interpreting the expression “if authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub section of Section 167 excepting the contingency indicated in Explanation I namely if the accused does that if after expiry of the period an application for furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain the bail and at that point of time a challan is filed then possibly it can be said that the right of the moved or that the Magistrate erroneously refuses to called indefeasible right of the accused on failure on specified period and the interest of the society at large on bail on account of inaction on the part of the While holding so this Court considered and discussed in bail including Sanjay Dutt v. State through C.B.I. 5 SCC 410 Hitendra Vishnu Thakur v. State of Maharashtra 1994) 4 SCC 602 State through CBI v. Mohd. Ashraft Bhat 1996) 1 SCC 432 Dr. Bipin Shantilal Panchal v. State of Gujarat 1 SCC 718 and Mohamed Iqbal Madar Sheikh We also find it relevant for the present purpose to quote the following conclusions of the Court in the said 60 days as the case may be an indefeasible right 13.4. When an application for bail is filed by an accused for enforcement of his indefeasible right of default on the part of the investigating agency in completion of the investigation within the specified period the Magistrate court must dispose of it by the investigating agency. Such prompt action on the part of the Magistrate court will not enable the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation 13.5. If the accused is unable to furnish bail as of Explanation I and proviso to subsection 2 of Section 167 the continued custody of the accused not be unauthorised and therefore if during that is filed then the socalled indefeasible right of the 13.6. The expression if not already availed of used by this Court in Sanjay Dutt s case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words on expiry of the period bail and offers also to furnish the bail on being availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail In Uday Mohanlal Acharya the application for The chargesheet was filed while the application challenging High Court held that the right to default bail was no longer opinion held that the accused is deemed to have exercised his Section 167(2) CrPC by subsequently filing a chargesheet or additional complaint while the bail application is pending consideration or final disposal before a Magistrate or a higher forum. Accordingly this Court granted relief to the appellant However it appears that in spite of the conclusions 11. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by the Indian Constitution and deprivation of the same proviso to subsectionof Section 167 any further with the provisions of the Criminal Procedure Code and as such could be violative of Article 21 of the person shall be deprived of his life or personal liberty except of India 1 SCC 248 that such a procedure cannot be nothing but a legislative exposition of the constitutional remanded to custody either police or judicial was 15 days investigations within 15 days a practice arose wherein investigative officers would file ‘preliminary chargesheets’ after the magistrate to postpone commencement of the trial and final chargesheet was filed. The Law Commission of India in II 1948 pages 758760) pointed out that in many cases the Hence the Law Commission in Report No. 14 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 by the Law Commission in Report No. 41 on The Code of Criminal Procedure 1898an accused person should get a fair trial in 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 iii) the procedure should not be complicated and should to the utmost extent possible ensure fair deal It was in this backdrop that Section 167(2) was the period of remand of the accused proportionate to the acquires the indefeasible right to bail. As is evident from the intent of the legislature was to balance the need for sufficient the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the the accused can no longer be detained. This ensures that the without misusing the prospect of further remand. This also that society at large does not lose faith and develop cynicism Therefore as mentioned supra Section 167(2) is integrally linked to the constitutional commitment under manner which serves this purpose. In this regard we find it Court in Rakesh Kumar Paul v. State of Assam 15 SCC 67 which laid down certain seminal principles as to the interpretation of Section 167(2) CrPC though the questions of were whether firstly the 90 day remand extension under Section maximum period of imprisonment was 10 years though the application for default bail even though the expiry of the 90 day limit is only available in respect of offences where a minimum ten year imprisonment period is stipulated and that application. This was based on the reasoning that the Court B. Lokur J. in his majority opinion pertinently observed as “29. Notwithstanding this the basic legislative intent and also within an otherwise timebound period remains unchanged even though that period has been extended over the years. This is an indication investigations the legislature has also and always put a premium on personal liberty and has always have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not he or she might not even have committed. In our opinion the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of textual perspective as canvassed by the learned it is not always advisable to be formalistic or technical. The history of the personal liberty and for other writs being entertained even on the Therefore the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches of this Court in S. Kasi v. State Through The Inspector of Appeal No. 452 of 2020 dated 19th June 2020) 2020 SCC OnLine SC 529 wherein it was observed that the indefeasible prevailing currently. It was emphasized that the right of the Additionally it is wellsettled that in case of any favour the interpretation which leans towards protecting the rights of the accused given the ubiquitous power disparity trial expeditious investigation and trial and setting down a rationalized procedure that protects the interests of indigent Hence it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial The meaning of “ 12. One of the relevant decisions dealing with the question of that of the twoJudge Bench in Hitendra Vishnu Thakur scope of Section 20(4)(bb) of the Terrorist and Disruptive the public prosecutor uninfluenced by the merits of the case That unless the Court grants extension in time based on the report of the Public Prosecutor the Designated Court under TADA would have no jurisdiction to deny to the accused his indefeasible right to default bail if the accused seeks and is prepared to furnish the bail bonds as directed by the Court stated that the Court cannot release the accused on its own should not be held as conferring an indefeasible right on the of the challan and it does not survive or remain availed of. Once the challan has been filed the question of grant of bail has to be considered and under the provisions relating to grant of bail to an the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced the moment challan is filed because Section 167 CrPC ceases to apply…It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid be dismissed if on the date of return of the rule the 53…(2)(b) The indefeasible right of the accused to be of the challan within the time allowed as held in Hitendra Vishnu Thakur is a right which enures to survive or remain enforceable on the challan being filed. If the accused applies for bail under this extended period as the case may be then he has to be released on bail forthwith. The accused so released on bail may be arrested and committed to It appears that the term “if not already availed of” mentioned supra has become a bone of contention as Courts is filed or when the bail petition is finally disposed of by the Court or only when the accused actually furnishes bail as The majority opinion in Uday Mohanlal Acharya must be understood to mean “when the accused files an case it has to be held that the accused has enforced his However B.N. Agrawal J. in his minority opinion partly dissented with the majority particularly with respect to be detained in custody so long as he does not furnish bail” in Explanation I to Section 167(2) indicated that the right to be released on default bail could be exercised only on actual Having considered both opinions we have arrived at the conclusion that the majority opinion in Uday Mohanlal Acharya is the correct interpretation of the decision decision in Sanjay Dutt merely casts a positive corresponding soon as the prescribed period of investigation expires. As the the Court cannot suo motu grant bail without considering inbuilt safeguard within Section 167(2) to ensure that the accused is not automatically released from custody without obtaining the satisfaction of the Court that he is able to guarantee his presence for further investigation or for trial as the case may be. Further as the majority opinion in Rakesh Kumar Paul pointed out there could be rare occasions chargesheet is filed such waiver of the right by the accused However the Constitution Bench decision in Sanjay accused has promptly exercised his right under Section 167(2 The arguments of the State that the expression necessary bail would cause grave injustice to the accused and file an additional complaint or investigation report before the Court during the interregnum. In some cases the Court may expiry of the stipulated period the Court has no further filing the investigation report complaint against the appellant It was noted by B.N. Agrawal J. in his minority opinion in Uday Mohanlal Acharya that a distinction appropriate direction. Whereas in case of the latter the Court in the meantime. In a similar manner the Respondent Uday Mohanlal Acharya and subsequent decisions of this Court considered the bail application on the same day it was In our considered opinion such a distinction cannot be adopted as it would give rise to parallel litigations particular date at a particular time. Delay in deciding the bail not be a clearcut answer to the same in all circumstances application the accused is deemed to have exercised his actual release from custody is inevitably subject to compliance Paul that as a cautionary measure the counsel for the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights spelled out under Article 21 of the Constitution and the not furnish bail. However as mentioned supra the majority opinion in Uday Mohanlal Acharya expressly clarified that where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court but has scenario if the prosecution subsequently files a chargesheet it that the accused is not immediately released from custody to mean that if the accused in spite of being ready and willing could not furnish bail on account of the pendency of the bail rejection of his bail application was pending before a higher an interpretation is accepted the application of the Proviso to Section 167(2) would be narrowly confined only to those cases application as soon as it is preferred before the Court which may docket across courts or for other reasons. Moreover the application for bail has to be decided only after notice to the public prosecutor. Such a strict interpretation of the Proviso would defeat the rights of the accused. Hence his right to be released on bail cannot be defeated merely because the fulfil the conditions of bail of furnishing bonds etc. so long as he Hence we reject Mr. Lekhi’s argument that the Appellantaccused is not entitled to the protection of Section 167(2) CrPC if he has not furnished bail at the time the Rights of the Prosecutor under Section 167(2) CrPC opinion expressed in Hitendra Vishnu Thakur that the Public Prosecutor may resist grant of default bail by filing a “30…It is however permissible for the public prosecutor to resist the grant of bail by seeking an to have his say regarding the prayer for grant of extension under clause of Section 20(4) has released. Even where the court grants an extension under clause but the chargesheet is not filed within the extended period the court shall have no This was affirmed by the Constitution Bench in Sanjay prayer is made. This seems to have given rise to the misconception that Sanjay Dutt endorses the view that the prosecution may seek extension of time for completing the is released on bail notwithstanding the fact that a bail The observations made in Hitendra Vishnu Thakur the Public Prosecutor must be considered together are in our files a report seeking extension of time prior to the filing of the notwithstanding the fact that the period for completion of investigation has expired both applications would have to be considered together. However where the accused has already applied for default bail the Prosecutor cannot defeat the It must also be added and it is well settled that of the prescribed period or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court to refuse granting bail on the alleged ground of default Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent However Public Prosecutors cannot be permitted to misuse the limited notice issued to them by the Court on bail applications filed under Section 167(2) by dragging on proceedings and filing subsequent applications reports for the 15. We are fortified in our aforementioned conclusions by the threeJudge Bench decision of this Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra it Madar Sheikh and which was part of the original Constitution Bench in Sanjay Dutt rendered judgment “4…But it is an admitted position that the charge sheet has been filed on 2351994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to subsection of Section 167 of the Code not having made an application when such right had accrued can v. State through Court in the case of Sanjay Dutt right to be released on bail for the failure of the prosecution to file the chargesheet within the maximum time allowed by law he cannot contend time notwithstanding the fact that in the meantime is released on bail under such circumstances he The abovementioned discussion clearly corroborates Acharya that the decision in Sanjay Dutt only lays down as a that the accused is deemed to have exercised his right to bail It is useful to refer to the decisions of this Court in Mohd. Ashraft Bhat Ateef Nasir Mulla v. State of Maharashtra 7 SCC 29 and Mustaq Ahmed In Mohd. Ashraft Bhat the Court rejected the application for placed upon Sanjay Dutt of the Prevention of Terrorism Act for default bail the accused would not be entitled to bail. In Mustaq Ahmed Mohammed Isak the Court similarly rejected Control of Organised Crime Act 1999 as the chargesheet was period granted by the Special Court and hence within the State (2012) 12 SCC 1 the accused filed an application for default bail on 17.7.2012. The on the said date renotified the hearing for 18.7.2012. On 18.7.2012 the State filed an application seeking extension of remand under Section 43D of the Unlawful Activities Subsequently the chargesheet was filed on 31.7.2012. It was upon Sanjay Dutt that the right to statutory bail stood The threeJudge Bench rejected the aforesaid contention and held that the right of the accused to statutory bail which was exercised at the time his bail application was filed remained unaffected by the subsequent application for extension of time to complete investigation. Further the Court “25. Having carefully considered the submissions provisions of law and the decision cited we are of the State by the learned Additional Solicitor for hearing. Instead of hearing the application the the next day when the Public Prosecutor filed an further period of 90 days with retrospective effect accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into by the learned Additional Solicitor General could only be distinguished extinguished) once the chargesheet had been filed in the case and no 26. The circumstances in this case however are custody was held to be illegal and such an application was left undecided by the Chief investigation was taken up and orders were passed 27. We are unable to appreciate the procedure the view that the appellant acquired the right for grant of statutory bail on 1772012 when his custody was held to be illegal by the Additional was pending at the time when the application for appellant to grant of statutory bail remained unaffected by the subsequent application and both Similarly in Union of India v. Nirala Yadav 9 SCC 457 the accused filed application for default bail on under Section 49(2)(b) of the POTA on 15.3.2007. However no order was passed on either application. In the meanwhile the chargesheet was filed on 26.3.2007. On 3.4.2007 the Special Government that according to the decision in Sanjay Dutt the application for default bail on the day it was filed. Hence the Court in reliance upon Uday Mohanlal Acharya upheld the Pragyna Singh Thakur v. State of Maharashtra 10 SCC 445 wherein it was held in reliance upon Sanjay Dutt said right to bail would be extinguished if the prosecution subsequently files a chargesheet before consideration of the Judges in Pragyna Singh Thakur had referred to the It ought to be noted that in Pragyna Singh Thakur of remand of the accused to custody. The aforementioned observations on the extinguishment of the right to default bail were only made as obiter in the form of a hypothetical arguendo be relied upon by the State we must clarify that in our considered opinion the observations made in Pragyna Singh It is pertinent to note that the twoJudge Bench in stated by the earlier coordinate Bench in Pragyna Singh Thakur particularly in paragraphs 54 and 58 of the decision do not state the correct position of law. Having studied both opinions we are constrained to conclude and hold that the position as stated in Nirala Yadav is correct. We find that the opinion expressed in Pragyna Singh Thakur that the right to bail can be considered only on merits once the chargesheet is of the Constitution Bench in Sanjay Dutt. As mentioned supra the twoJudge Bench in Pragyna Singh Thakur to mean that the accused can only avail of the right to default bail if he is this Court in Uday Mohanlal Acharya has correctly understood and analysed the principles stated in the case of by a subsequent threeJudge Bench in Sayed Mohd. Ahmad Kazmi 2020 SCC OnLine SC 824 dealing with similar UAPA a threeJudge Bench of this Court after considering the “A conspectus of the aforesaid decisions would days he is forthwith without any unnecessary delay after getting necessary information from the public prosecutor as mentioned supra. Such prompt action will restrict the prosecution from accused on bail in case of default by the The right to be released on default bail continues to remain enforceable if the accused has applied for such bail notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court or filing of the chargesheet during the before the Magistrate the right to default bail would be extinguished. The Magistrate would be released on bail under other provisions of the Notwithstanding the order of default bail from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and or comply with the terms and conditions of the bail order within the time stipulated by the Court his directed by the Trial Court the Appellantaccused should also the Trial Court. This should alleviate any concerns about the |
Praga Tools Corporation V/s. Shri C. A. Imanual & Ors. | The company being a non-statutory body and one incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The Praga Tools Corporation is a company incorporated under the Indian Companies Act, 1913. At the material time however, the Union Government and the Government of Andhra Pradesh between them held 56% and 32% of its shares respectively and the balance of 12% shares were held by private individuals. There were two rival workmen’s unions in the company, the Praga Tools Employees Union and the Praga Tools Corporation Mazdoor Sabha.On July 1, 1961 settlement was arrived at between the company and the union under which the workmen inter alia agreed to observe industrial truce for a period of three years and not to resort to strikes or stoppage. On December 10 1962, the company and the said union entered into a supplementary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce on an assurance from the said union of cooperation and willingness of the workmen. The said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under ss. 2(p) and 18(1) of the Industrial Disputes Act, 1947 and were to be in force until July 1, 1964.On December 20 1963, however, the company entered into an agreement which recited that there were several disputes between the company and the union and that some of them were the subject-matter of conciliation proceedings and some were pending arbitration or adjudication. This agreement rendered the prior two agreements repealed. Clause (6) stated that there was an immediate, unavoidable need for reducing substantially the overhead expenditure of the company and a list was prepared of persons who would be retrenched after careful consideration and also evolved a voluntary retirement scheme.The effect of this agreement was to enable the company notwithstanding the two earlier settlements to carry out retrenchment of 92 of the workmen with effect from January 1, 1964. Some of the affected workmen filed a writ petition under Art. 226 of the Constitution praying for a writ of mandamus against the company restraining it from giving effect to the said agreement. The Single Judge dismissed the petition on merits.In appeal the Division Bench held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for mandamus or any other writ could lie. No such petition could also lie against the conciliation officer who had signed the agreement, as on the facts of the case it was not, he who sought to implement the agreement. The Division Bench however held that though the writ petition was not maintainable it could-grant a declaration in favour of three of the petitioners that the impugned agreement was illegal and void. The competency of the High Court to make such a declaration was challenged by the company in appeal before this Court.The competency of the High Court to make such a declaration was challenged by the company in appeal before this Court ISSUE BEFORE THE COURT: Whether in the view that it took that the writ petition was not maintainable against the company the High Court could still grant the said declaration. RATIO OF THE COURT It was contended by workmen that the said agreement dated December 20, 1963 was invalid as it was entered into by the union in collusion with the company and was in violation of the said two earlier settlements, that there could be no industrial dispute within the meaning of s. 2(k) of the Act as the said two earlier settlements, that the retrenchment of the 92 work-men was illegal and void as it was in breach of s. 25(F).The impugned agreement was signed by the conciliation officer appointed by the State Government and was not valid and no retrenchment could validly be effected under the force of such agreement as the company is under the management of the Union Government.The learned Single Judge negated these contentions holding that the company was neither an industry run by or under the authority of the Union Government nor under its management but being a company registered under the Companies Act the appropriate Government was the State Government. He held that the letter dated April 5, 1963 raised an industrial dispute and with the consent of the company and the union was brought for conciliation and agreement having been brought in the course of the conciliation proceedings was binding on all workmen. The single judge dismissed the writ petition on merits on the basis of the aforesaid findings given by him.Division bench hearing the appeal held that since the dispute relating to the company’s right to retrenchment was already settled under s. 18(1) by the said supplementary settlement of December 10, 1962, no industrial dispute could be said to exist or arise until the said settlement was duly terminated under S. 19(2), that therefore there could be no valid conciliation proceedings in respect of the question of retrenchment and that the impugned agreement permitting the company to retrench, though it bore the signature of the conciliation officer, was not a valid agreement.The letter relied upon by the single judge did not raise any industrial dispute but only a question regarding wage structure. The bench however held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for a mandamus or any other writ could lie but held that that the impugned agreement was illegal and void and dismissed the writ petition subject to the said declaration.The Supreme Court hearing the appeal held that the high court was right in claiming the writ petition was not maintainable. An application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.The company being a non-statutory body and one incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty.The appeal was however against the declaration of the high court after holding the petition not maintainable. It is fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such a statute.The court observed that An order of mandamus is, In form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body.The High court relied upon two decisions of this court as justifying it to issue the said declaration but neither of these two decisions is a parallel case which could be relied on. These cases were not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted.The court believed that once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted.The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. The high court was in error in granting the said declaration. DECISION HELD BY COURT: The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen.The High Court, therefore, was in error in granting the said declaration. The result is that the appeal must be allowed and the said declaration set aside. In the circumstances of the case we make no order as to costs. Appeal allowed. | PRAGA TOOLS CORPORATION Vs SHRI C. A. IMANUAL & ORS DATE OF JUDGMENT SHELAT J.M SHELAT J.M BHARGAVA VISHISHTHA 1969 AIR 1306 1969 SCR 773 1969 SCC 585 CITATOR INFO RF 1970 SC1150 and s 18(1) of the Industrial Disputes Act 1947 and were to be in force as aforesaid until July 1 1964. On December 20 1963 however the company entered into another agreement with the said union. The effect of this agreement was to enable the company notwithstanding the two earlier settlements to carry out retrenchment of 92 of the workmen with effect from January 1 1964. Some of the affected workmen filed a writ petition under Art. 226 of the Constitution praying for a writ of mandamus against the company restraining it from giving effect to the said agree ment. The Single Judge dismissed the petition on merits In appeal the Division Bench held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for mandamus or any other writ could lie. No such petition could also lie against the conciliation officer who had signed the agreement as on the facts of the case it was not he who sought to implement the agreement. The Division Bench however held that though the writ petition was not maintainable it could grant a declaration in favour of three of the petitioners that the impugned agreement was illegal and void. The competency of the High Court to make such a declaration was challenged by the company in appeal before this Court HELD : " The condition precedent to the issue of a mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is in form a command directed to a person corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is however not necessary that the person or authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue for instance to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities.S.C.R. 738 Regina v Industrial Court & Ors. 1 Q.B. 377 R. v. Lewisham Union 1 Q.B. 498 501 Mc. Clelland v. Northern Ireland General Health Services Boards 1 W.L.R. 594 Ridge v. Baldwin A.C. 40 Short v. Poole Corporation Ch. 66 at pp. 90 to 91 and Attorney General V. St. Ives R.D.C.1 Q.B. 366 referred to ii)The High Court was however in error in granting the declaration in favour of the three workmen.Supp. 1 S.C.R. 381 and A. B Abdulkadir v. State of Kerala Supp. 2 S.C.R. 741 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6166 Appeal by special leave from the judgment and order dated April 16 1965 of the Andhra Pradesh High Court in Writ Appeal No. 364 S. V. Gupte and R. Thiagarajan for the appellant Janardan Sharma for respondents Nos. 1 and 3 The Judgment of the Court was delivered by Shelat J. The Praga Tools Corporationis a company incorporated under the Indian Companies Act 1913. At the material time however the Union Government and the Government of Andhra Pradesh between them held 56% and 32% of its shares respectively and the balance of 12% shares were held by private individuals Being the largest shareholder the Union Government had the power to nominate the company’s directors. Even so being registered under the Companies Act and governed by the provisions of that Act the company is a separate legal entity and cannot be said to be either a Government corporation or an industry run by or under the authority of the Union Government At the material time there were two rival workmen’s unions in the company the Praga Tools Employees Union and the Praga Tools Corporation Mazdoor Sabhaand 18(1) of the Industrial Disputes Act 1947 and were to be in force as aforesaid until July 1 1964. On December 20 1963 however the company entered into an agreement with the said union to which the said sabha was not a party. The agreement recited that there were several disputes between the company and the union and that some of them were the subject matter of conciliation proceedings and some were pending arbitration or adjudication. Clause provided that the said agreements dated July 1 1961 and December 10 1962 to the extent that they were inconsistent with this agreement would stand automatically repealed or modified by this agreement. Clause stated that there was an immediate unavoidable need for reducing substantially the overhead expenditure of the company and for effecting economy and therefore notwithstanding the agreement dated December’ 10 1962 "both the parties have prepared a list of the categories and persons who would be retrenched after careful consideration". The said list was attached to the agreement as annexure VI. Clausealso provided that the agreement dated December 10 1962 stood modified so as to allow the said retrenchment to take place immediately in accordance with law. The clause further provided that in order to mitigate the consequences of the proposed retrenchment the company bad evolved a scheme of voluntary retirement with terminal benefits superior to those provided under the Industrial Tribunals Act but the scheme of voluntary retirement would be available to the workmen only for a period of 10 days from the date of the agreement. It that the company and the said union had agreed that an attempt would be made to rehabilitate the retrenched persons by helping them to obtain alternative employment and the company bad for that purpose contacted public sector and other industries and in particular the Heavy Engineering Corporation Ranchi for absorption as far as possible of the retrenched personnel. The effect of this agreement was to enable the company notwithstanding the two earlier settlements to carry out retrenchment of 92 workmen mentioned in annexure VI thereto with effect from January 1 Respondent 1 and 40 other workmen thereupon filed a writ petition under Art. 226 in the High Court of Andhra Pradesh challenging the validity of the said agreement impleading therein the company the said union and the Regional Assistant Commissioner as respondents. The petition claimed a writ of mandamus or an order in the nature of mandamus or any other order or direction restraining the respondents to implement or enforce the said agreement. The writ petition was in the first instance heard by a learned Single Judge of the High Court before whom the workmen raised the following contentions :that the said agreement dated December 20 1963 was invalid as it was entered into by the union in collusion with the company and was in violation of the said two earlier settlements that there could be no industrial dispute within the meaning of s. 2(k) of the Act as the said two earlier settlements not having been terminated under s. 19(2) were in force that therefore there could not be a valid conciliation under S. 12 and accordingly the fact of the conciliation officer having signed the impugned agreement gave no binding force to it 3) that the retrenchment of the 92 work men was illegal and void as it was in breach of s. 25(F) inasmuch as no notice thereof was given to the appropriate Government and that since the dispute relating to the company’s right to retrenchment was already settled under s. 18(1) by the said supplementary settlement of December 10 1962 no industrial dispute could be said to exist or arise until the said settlement was duly terminated under S. 19(2) that therefore there could be no valid conciliation proceedings in respect of the question of retrenchment and that the impugned agreement permitting the company to retrench though it bore the signature of the conciliation officer was not a valid agreement that so long as the earlier settlements were not terminated they held the field andthat the said letter dated April 5 1963 relied on by the learned Single Judge as having raised an industrial dispute regarding retrenchment did not in fact contain or raise any such question. The Division Bench held that the said letter raised only the question of revision of wage structure and other demands but not the question of retrenchment. The letter of July 29 1963 of the conciliation office to the company relied on by the company also referred to the demands contained in the said letter of April 5 1963 namely the revision of wage structure dear ness allowance promotion and other matters but not the question of the company’s right of retrenchment. The Division Bench therefore held that there was nothing on record to show that retrenchment was the subject matter of any conciliation before the conciliation officer and therefore any agreement conferring on the company the right to retrench so long as the said earlier settlements were not terminated was invalid in spite of the conciliation officer having given his assent to and affixed his signature on it The learned Judges however held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for a mandamus or any other writ could lie. No such petition could also lie against the conciliation officer as on the facts of the case that officer did not have to implement the impugned agreement. The Division Bench however held that though the writ petition was not maintainable it could grant a declaration in favour of three workmen namely appellants 6 16 and 25 before it that the impugned agreement was illegal and void and dismissed the writ petition subject to the said declaration. The company challenges in this appeal by special leave the validity of this judgment making such a declaration Thus the only question which arises in this appeal is whether in the view that it took that the writ petition was not maintainable against the company the High Court could still grant the said declaration In our view the High Court was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement. No doubt Art 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus mandamus etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.(1). In Regina v. Industrial Court & Ors. [1957] S.C.R. 738. [1965] 1 Q.D. 377 3) 1 Q.D. 498 501 it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is in form a command directed to a person corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue for ins Lance to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. Vol. 11 p. 52 and The company being a non statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court therefore was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company The grievance of the company however is that though the High Court held rightly that no such petition was maintainable it nevertheless granted a declaration in favour of three of the Raid workmen a declaration which it could not issue once it held that ’the said writ petition was misconceived. The argument was that such a declaration if at all could only issue against public bodies or companies or corporations set up or controlled by statutes in respect of acts done by them contrary to or in breach of the provisions of such statutes. If a public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act a nullity. Thus where a Hospital Services’ Board dismissed a clerk for reasons not authorised by the relevant conditions of service a declaration was granted to the applicant by the House of Lords. (1) Even where the statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the 1) 1 W.L.R. 594 rity has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorised purposes.and Short v Poole Corporation) (3). It is therefore fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person authority or body by such a statute The High Court however relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are Bidi Bidi Leaves’ and Tobacco Merchants Association v. The State of Bombay(4) and A. B. Abdulkadir v. The State of Kerala. But neither of these two decisions is a parallel case which could be relied on. In the first case the declaration was granted not against a company as in the present case but against the State Government and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under s. 5 of the Minimum Wages Act 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also certain rules made under the Cochin Tobacco Act of 1081 and the Travancore Tobacco Regulation of 1087 M.E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted. In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The 1)A.C. 40. [1926] Ch. 66 at pp. go to 91 3)1 Q.B. 366. [1962] Supp. 1 S.C.R 381 5)[1962] Supp. 2 S.C.R. 741 High Court therefore was in error in granting the said The result is that the appeal must be allowed and the said declaration set aside. In the circumstances of the case we make no order as to costs |
The state of Maharashtra vs. Syndicate Transport Company Pvt. Ltd | Introduction: Trust is the main factor behind every successful business. In India, breach of trust is punishable under both the Civil and Criminal Code. The case of State of Maharashtra v. Syndicate Transport Company Pvt. Ltd, deals with the question as to whether a corporate body is liable for punishment of offence involving men’s rea. It also highlights the criminal liability for breach of trust and cheating under Section 406, 403 and Section 420 of the Indian Penal Code. Facts: Kmart motors received a letter requesting an advanced amount of Rs.11,000 for purchasing a diesel engine for the company by Mr Manohar (Opp. No. 2). The letter stated the said diesel engine shall be filled in company’s bus no. BYY-610 and then the bus be transferred in his name. The bus shall be run by the company on hire purchase agreement till the advance amount of Rs.11,000 is satisfied. However, after receiving the amount the engine was fitted to another bus and no transfer of bus took place. The Complainant filed a complaint against the company’s managing director, another Director and a shareholder under Section 420 and Section 406 or 403 of Indian Penal Code, on which the Magistrate passed a separate order charging its Managing Director Chinta, shareholder and Director Harinarayan under Section 420 of IPC and discharged their directors. Issue: Whether a company can be prosecuted for an offence involving men’s rea under IPC. Contentions raised: Mr Hardas on behalf of the complainant company opposed the said reference stating that Section 2 and 11 of IPC clearly states that under this Code every person shall be liable for punishment and “person” includes a corporate body. He further submitted that a corporate body is indictable for all offences including men’s rea on the grounds that the acts of authorised agents and servants can attribute to the company. Further, the offence of breach of trust or misappropriation of property by dishonest means does not mandatorily prescribe imprisonment, based on these facts the Magistrate should be allowed to proceed against the company. On the other hand, Mr Madholkar and Mandpe for Messrs. Contended that although the definition of “person” includes a body corporate, a company only acts on behalf of its agent making it incapable to commit certain offences punishable with imprisonment. Further, the qualifying clause of Section 2 states that unless otherwise in subject or context the corporate body may be immune to prosecution for certain offences. Further, he contended that it was not permissible to prosecute a company or corporate body for an offence involving men’s rea if the men’s rea of an agent or servant of a company cannot be attributed to the company. Observations: The Court observed various cases including Anath Bandhu v. Corporation of Calcutta, Director of Public Prosecution v. Kent and Sussex Contractors Ltd., etc. which was put forth by the learned advocates in support of their contention and stated that in the above-mentioned cases none of them included the question of men’s rea. Later in Rex v. Haulage Ltd, the counsel for the Crown conceded that there were some offences for which a company can be indicted, exception to this were the offences of perjury or bigamy for which apart from a natural person, cannot be committed vicariously. Apart from these a company or corporation may be prosecuted for statutory and common law offences even if it involves men’s rea. Further, taking into view the claim submitted by Mr Hardas which stated that under Section 406 and 403 of IPC the Magistrate should proceed against the company for criminal breach of trust and misappropriation the company was discharged as no cognizance was taken by the Magistrate for the same. Judgement: The Court considering the observations and arguments put forth by both the parties stated that a corporate body acts on behalf of its agents or servants, criminal acts are done by its authorised agents or servants or omission of the same including his intention, state of mind, knowledge or belief is ought to be treated as acts or omission on the part of the company irrespective whether it involves men’s rea or not. Further the complainant failed to show that the Managing or Board of Directors had made any dishonest representation or has authorised the shareholder to make such a representation on behalf of the company and received the amount. The allegations made by the complainant indicates that the shareholder acted on its own but in the name of the company. In the given situation, though the company may have reaped the benefits of the diesel engine fitted into the bus, the company cannot be attributed to the false or dishonest representation or misappropriation made by the shareholder Manohar. So, it would not be permissible to direct the Magistrate to proceed with a charge under Section 406 and 403 of IPC against the company. Conclusion: On the basis of the above facts and observations, the Court accepted the reference quashing the charge framed against M/s. Syndicate Transport Company Pvt. Ltd. However, the Magistrate shall be at liberty to arrive at his conclusion and findings on the evidence presented before him. Edited by: Purnima Ojha Reference: State of Maharashtra v. Syndicate Transport Company Pvt. Ltd, AIR 1964 Bom 195 https://indiankanoon.org/doc/677388 | State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 Bombay High Court State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 Equivalent citations: AIR 1964 Bom 195 66 BOMLR 197 1964 CriLJ 276 1. This criminal reference raises an important question of law regarding the liability of a corporate body for indictment on a criminal charge involving the question of mens rea 2. The opponent No. 1 Messrs. Syndicate Transport Company Limited is a company incorporated under the Indian Companies Actwith its registered office at Nagpur. I shall refer to it as the Company hereafter The opponent No. 3 Chintaman is the Managing Director of the Company while the opponents Nos. 4 5 6 7 and 8 are its ordinary directors. The opponent No. 9 Manohar is an ordinary shareholder of the Company. This Manohar wrote a letter to the complainant Khemka Motorsto request for an advance of Rs 11 000 to the Company for the purchase or a diesel engine. The letter also stated that the diesel engine when purchased would be filled to the Company s bus No. BYY 610 and that bus would then be transferred in the name of the complainant and would be run by the Company on hire purchase agreement till the satisfaction of the advance of Rs. 11 000 . Accordingly the complainant agreed to advance Rs. 11 000 and paid that amount in cash to the share holder Manohar. After obtaining the amount a diesel engine was purchased but it was fitted to another bus of the Company and the bus No. BYY 610 was not transferred to the complainant. On these facts the complainant prosecuted the Company its Managing Director its other directors and the shareholder Manohar for alleged offences under Section 420 and 406 or 403 of the Indian Penal Code. The trial Magistrate passed a separate order discharging the directors and framed charges under Section 420 Indian Penal Code against the Company its Managing Director Chintaman another director Harinarayan and the shareholder Manohar. The Company went up in revision to the Sessions Court Nagpur with a request to quash the proceedings against it. Accepting this submission the Extra Additional Sessions Judge Nagpur has reported the case to this Court with a recommendation to quash the charge framed by the trial Magistrate against the Company. The learned Extra Additional Sessions Judge was of the view that a corporate body acts only through its agents or servants and the mens rea of such agents or servants cannot be attributed to the Company. He also remarked that it would not be possible to sentence a Company to imprisonment and a charge under Section 420 Indian Penal Code could not be sustained against the Company because it was mandatorily punishable with imprisonment. The learned Additional Government Pleader for the State and Messrs. Mandpe and B. L. Gupta for the Company and the director Harinarayan supported the reference. Mr. V. G. Hardas advocate for the complainant Company opposed the reference 3. While opposing the reference Mr. Hardas submitted that under Section 2 of the Indian Penal Code every person shall be liable for punishment under the Code and under Section 11 ibid a corporate body like a company is included in the definition of a "person" and therefore a corporate body like any other person ought to be indictable for any offence punishable under the Code Messrs. Mudholkar and Mandpe contended on the other hand that though a corporate body was included in the definition of a "person" there were certain offences which could be committed only Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 by an individual human being and a corporate body could not therefore be capable of committing such offences. They further urged that certain offences had to be punished only with imprisonment and it would not be possible to impose a punishment of imprisonment on corporate bodies According to them a corporate body could act only through some authorized agent or servant and it would not be possible or permissible to attribute the guilty intention of the said agent or servant to the company so as to make the company liable for the offence. They therefore urged that the definition of a "person" would have to be read as being subject to the qualifying clause "unless there is anything repugnant in the subject or context" and corporate bodies will have to be held to be immune from prosecution for offences falling within the three categories mentioned above. Both these submissions would require careful consideration 4. Sections 2 and 11 of the Indian Penal Code are in the following words Section 2. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof of which he shall be guilty within India Section 11. The word "person" includes any Company or Association or body of persons whether incorporated or not A plain reading of these two sections together would show that a company or a corporate body shall be liable for indictment for all kinds of offences. It is not disputed that there are several offences which could be committed only by an individual human being for instance murder treason bigamy rape perjury etc. A company which does not act by or for itself but acts through some agent or servant would obviously not be capable of commission of the aforesaid offences and would therefore not be liable for indictment for such offences. Again there are certain other offences which necessarily entail the consequences of corporal punishment or imprisonment. A body corporate or a company cannot be subjected to such corporal punishment of imprisonment Prosecuting a company for such offences would only result in the Court "stultifying itself by embarking on a trial in which it a verdict of guilty is returned no effective order by way of sentence can be made." That will mean that the broad definition of a "person" which included a corporate body will have to be read as being subject to some kind of limitations 5. The definition of a person in Section 11 of the Indian Penal Code is more or less on par with the definition of that word given in Section 3(42) of theGeneral Clauses Act 1897 which is in the following words 3General Clauses Act are governed by the qualifying clause in the main Section No. 3 "unless there is anything repugnant in the subject or context" but such a qualifying clause is not appended to the definitions given in the Indian Penal Code. Even so it would be seen from the analogy of the reasoning in Kartick Chandra v. Harsha Mukhi Dasi and Darbari Lal v. Dnaram Wati.(FB) that the clause "unless there is Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 anything repugnant in the subject or context" must always be understood to exist in the context of the definitions given in the Indian Penal Coda also. Mr. Hardas would not show any authority to the contrary which would exclude the application of the qualifying clause" "unless there is anything repugnant in the subject or context 6. Indeed he accepted such a qualification while conceding that a corporate body cannot be indicted for offences like treason murder bigamy perjury rape etc. which can be committed only by human individuals or for offences which are compulsorily punishable with imprisonment. It would therefore have to be held that despite the generality of the definition of a "person" given in Section 11 of the Indian Penal Code a corporate body or a company shall not be indictable for offences which can be committed only by a human individual of for offences which must be punished with imprisonment. The offence of cheating under Section 420 Indian Penal Code "shall be punished with imprisonment" and even Mr. Hardas accepted the position that a company cannot be prosecuted for that offence mandatorily involving a punishment of imprisonment. He therefore conceded that the reference will have to be accepted so far as the charge of cheating under Section 420 Indian Penal Code was concerned 7. Mr. Hardas however submitted that barring offences which could only be committed by an individual or which mandatorily entailed punishments of imprisonment a company or a corporate body was indiclable for all other offences involving mens rea on the basis that the mens rea of the authorized agents or servants who purport to act for it could be attributed to the company According to him the complainant was also prosecuting the company for alleged offences of criminal breach of trust or dishonest misappropriation of property under Sections 406 and 403 of the Indian Penal Code in the alternative and these offences did not prescribe a compulsory punishment of imprisonment and therefore the Magistrate ought to be directed to proceed against the company under those sections in the alternative. Mr. Mandpe for the company was contending on the other hand that though these offences did not necessarily involve a punishment of imprisonment the mens rea of the agents or servants cannot be attributed to the company and it was not permissible to prosecute a company and a corporate body for any offences involving mens 8. The learned advocates for the parties stated at the bar that there were only three rulings of Indian Courts on this point. In support of his contention that the company could be prosecuted for the offences committed by its servants Mr. Hardas relied on Anath Bandhu v. Corporation of Calcutta In that case a limited company was prosecuted for breach of Section 407 of the Calcutta Municipal Act which was committed by the proprietor of the Company and the proprietor was convicted for that offence. The learned Judge who decided the case repelled the contention that the limited Company could not be indicted for that offence. He held that if a sentence of fine were to be passed action could be taken under Sections 386 and 388 of the Criminal Procedure Code for recovering the fine from the Company. That case did not involve any mens rea and the decision did not consider the question whether the mens rea of the servants or agents of the company could be attributed to the company. Consequently that ruling was of no help to Mr. Hardas in support of his contention that the mens rea of the company s servants or agents could be attributed to the company. Mr. Mandpe relied on Punjab National Bank v. A. R. Gonsalyes Bunder Inspector Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 Karachi Port Trust AIR 1951 Sind 142. That was a case relating to the infringement of some bye laws of the Karachi Port Trust It was held in that case that it was only in a limited class of cases that a company can commit an offence and these must be cases in which mens rea is not essential and must be cases in which it is possible for the Court to pass a sentence of fine only. This case no doubt supports the view point of the company s advocate but the discussion in that judgment is not very detailed. Mf. Mandpe then relied on Sunil Chandra Banerji v. Krishna Chandra Nath ILR 1949 2) Cal 293 :Regulations 1939. In that case officials of that company had made use of a document which was false in material particulars and statements which the Manager knew to be false in material particulars were made. In this case Viscount Caldecote C.J. made the following He has not disputed the abstract proposition that a company can have knowledge and can form an intention to do an act. A company cannot be found guilty of certain criminal offences such as treason or other offences for which it is provided that death or imprisonment is the only punishment but there are a number of criminal offences of which a company can be convicted ...... Under the DefenceRegulations 1939 it is common for offences to be created in which certain ingredients are required to be found and the present case seems to me to fall within that category .........the real point which we have to decide which is I repeat whether a company is capable of an act of will or of a state of mind so as to be able to form an intention to deceive or to have knowledge of the truth or falsity of a statement............The offences created by the regulation are those of doing something with intent to deceive or of making a statement known to be false in a material particular. There was ample evidence on the facts as stated in the special case that the company by the only people who could act or speak or think for it had done both these things and I can see nothing in any of the authorities to which we have been referred which requires us to say that a company is incapable of being found guilty of the offences with which the respondent company was charged Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 In this judgment in that same case Macnaghten J. made the following observations It is true that a corporation can only have knowledge and form an intention through its human agents but circumstances may be such that the knowledge and intention of the agent must be imputed to the body corporate...............If the responsible agent of a company acting within the scope of his authority puts forward on its behalf a document which he knows to be false and by which he intends to deceive I apprehend that according to the authorities that my Lord has cited his knowledge and intention must be imputed to the company It has to be remembered that this ruling related to a case where offences were created under a regulation having the effect of a statute. That decision supported the view of Mr. Hardas that under certain circumstances the guilty intention of the director or authorised agent of the company may be attributed to the company to make it indictable but that ruling does not purport to lay down generally as Mr. Hardas wanted to say that in every case the mens rea of the directors would be attributable to the company 10. Mr. Hardas was then relying on certain other English cases in support of his view that a company would be indictable for the acts of its agents and directors. Mr. Mandpe on the other hand was relying on some other English cases in which indictments for offences involving mens rea were quashed. I do not think it necessary to discuss those cases at any length because they have been fully considered in the latest English ruling on the point which I would mention in the next paragraph. Suffice it to say that in the cases relied on by Mr. Hardas either the question of mens rea was not involved or the statuto under which the prosecutions were launched had made corporate bodies vicariously liable for the acts of its servants and agents. In the case relied on by Mr. Mandpe the Judge had not advanced any reasons of his own for quashing the indictment 11. The matter bad come up for consideration before the King s Bench Division again in Rex v. I. C R. Haulage Ltd. 1944 1 KB 551. In that case a company was being prosecuted for a common law conspiracy to defraud. It was conceded by the counsel for the company that a limited company can be indicted for some criminal offences and it was conceded by the counsel for the Crown that there were some criminal offences for which a limited company cannot be indicted. As Stable J. remarked The controversy centred round the question where and on what principle the lino must be drawn and on which side of the line an indictment such as the present one falls. Counsel for the company contended that the true principle was that an indictment against a limited company for any offence involving as an essential ingredient "means rea" in the restricted sense of a dishonest or criminal mind must be bad for the reason that a company not being a natural person cannot have a mind honest or otherwise and that conse quently though in certain circumstances it is civilly liable for the fraud of its officers agents or servants it is immune from criminal process. Counsel for the Crown contended that a limited company like any other entity recognized by the law can as a general rule be indicted for its criminal acts which from the very necessity of the case must be performed by human agency and which in given circumstances become the acts of the company and that for this purpose there was no distinction between an intention or other function of the mind Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 and any other form of activity 12) Upon those rival contentions Stable J. made the following observations on page 554 The offences for which a limited company cannot be indicted are it was argued exceptions to the general rule arising from the limitations which must inevitably attach to an artificial entity such as a company. Included in these exceptions are the cases in which from its very nature the offence cannot be committed by a corporation as for example perjury an offence which cannot be vicariously committed or bigamy an offence which a limited company not being a natural person cannot commit vicariously or otherwise. A further exception but for a different reason comprises offences of which murder is an example where the only punishment the court can impose is corporal the basis on which this exception rests being that the court will not stultify itself by embarking on a trial in which if a verdict of guilty is returned no effective order by way of sentence can be made. In our judgment these contentions of the Crown are substantially sound and the existence of these exceptions and it may be that there are others is by no means inconsistent with the general rule 13. Stable J. then went on to consider several authorities which were cited at the bar. After quoting the views of Lord Caldecote C. J. and Lord Macnaghten J. in 1944 1 K. B. 146 which I have quoted above the final decision was given in the following words at page 559 "...............With both the decision in that case and the reasoning on which it rests we agree." Apart from these exceptions a corporation may be guilty both of statutory and of common law offences even though the latter involve mens rea: and in the construction of any enactments relating to an offence punishable on indictment or on summary conviction the expression "person includes a body corporate unless the contrary intention appears. A corporation can only commit crime by or through its agents some of whom must themselves be responsible for the crime. It is a question of fact in each particular case whether the criminal act of its agent is the act of the corporation and whether the agent s state of mind intention knowledge or belief can be imputed to the corporation. It depends on the nature of the charge the position of the officer or agent relative to the corporation and the other relevant facts and circumstances of the case Similar views on this point are expressed in Russell on Crime Eleventh Edition Volume I 1958 Indian Kanoon In our judgment both on principle and in accordance with the balance of authority the present indictment was properly laid against the company and the learned commissioner rightly refused to quash. We are not deciding that in every case where an agent of a limited company acting in its business commits a crime the company is automatically to be held criminally responsible. Our decision only goes to the invalidity of the indictment on the face of it an objection which is taken before any evidence is led and irrespective of the facts of the particular case. Where in any particular case there is evidence to go to a jury that the criminal act of an agent including his state of mind intention knowledge or belief is the act of the company and in cases where the presiding judge so rules whether the jury are satisfied that it has been proved must depend on the nature of the charge the relative position of the officer or agent and other relevant facts and circumstances of the case. It was because we were satisfied on the hearing of this appeal that the facts proved were amply sufficient to justify a finding that the acts of the managing director were the acts of the company and the fraud of that person was the fraud of the company that we upheld the conviction against the company and indeed on the appeal to this court no argument was advanced that the facts proved would not warrant a conviction of the company assuming that the conviction of the managing director was upheld and that the indictment was good in law 14. In this connection the remarks in Halsbury s Laws of England in paragraph 521 on page 281 and 282 of Tenth Volume Third Edition1955 were referred to in the Court of the Extra Additional Sessions Judge but he does not seem to have considered them. Those remarks are as follows A corporation aggregate cannot be guilty of any offenceswhich by their very nature can only be committed by natural persons nor can a corporation aggregate be found guilty of a crime where the only punishment is death or imprisonment State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 15. A perusal of the decision in 1944 1 KB 551 would show how the law on the point has been undergoing a change in England. Section 2 of the Interpretation Act 1889Ltd. ... on 26 September 1963 reason to exempt them from liability for crimes committed by their agents or servants while purporting to act for or on behalf of the corporate bodies. The ordinary citizen is now very much exposed to the activities of persons acting in the name of corporate bodies to his detriment. Even in our country now in the words of Russell quoted above "the point is being reached where what is called for is a comprehensive statement of principles formulated to meet the needs of modern life in granting the fullest possible protection of criminal law to persons exposed to the action of the many powerful associations which surround them 17. In my view therefore "the scope within which criminal proceedings can be brought against institutions which has been become so prominent a feature of everyday affairs" ought to toe widened so as to make corporate bodies indictable for offences flowing from the acts or omissions of their human agents. Ordinarily a corporate body like a company acts through its managing director or board of directors or authorized agents or servants and the criminal act or omission of an agent including his state of mind intention knowledge or belief ought to be treated as the act or omission including the state of mind intention knowledge or belief of the company. I do not mean or intend to suggest that in every case where an agent of a limited company acting in its business commits a crime the company is automatically to be held criminally responsible. As adumbrated a company cannot be indictable for offences like bigamy perjury rape etc which can only be committed by a human individual or for offences punishable with imprisonment or corporal punishment. Barring these exceptions a corporate body ought to be indictable for criminal acts or omissions of its directors or authorized agents or servants whether they involve mens rea or not provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body. The question whether a corporate body should or should not be liable for criminal action resulting from the acts of some individual must depend on the nature of the offence disclosed by the allegations in the complaint or in the charge sheet the relative position of the officer or agent vis a vis the corporate body and the other relevant facts and circumstances which could show that the corporate body as such meant or intended to commit that act. Each case will have necessarily to depend on its own facts which will have to be considered by the Magistrate or Judge before deciding whether to proceed against a corporate body or not 18. I would next consider the claim of Mr. Hardas that the Magistrate should be directed to proceed against the company with respect to the charges of criminal breach of trust and criminal misappropriation under Sections 406 and 403 of the Indian Penal Code in the alternative. The fact that the Magistrate did not take cognizance under those sections virtually amounted to a discharge of the company thereunder. The complainant had not challenged that implied discharge by filing a revision against the order of the Magistrate omitting to take cognizance of these offences. No reason was shown by Mr. Hardas why or how that question could now be agitated for the first time while hearing this argument 19. Even if the argument could be considered the merits of the allegations in the complaint would not warrant any direction to the Magistrate to proceed against the company under Section 406 or 403 Indian Penal Code in the alternative. The complaint did not allege that the managing director or board of directors had made the dishonest representation or had received the monies or had authorised the shareholder Manohar to make such a representation or to receive the amount. On the Indian Kanoon State Of Maharashtra vs Syndicate Transport Co.Ltd. ... on 26 September 1963 contrary the allegations in the complaint only showed that the alleged dishonest representation and the alleged receipt of the amount was by a mere shareholder who was only a stranger so far as the administration of the company was concerned. There was no warrant in the allegations in the complaint for the claim of Mr. Hardas that Manohar was acting on the authority given to him by the managing director. There was also nothing to show that the board of directors had passed any resolution authorising Manohar to make such a dishonest representation or to receive the amount The allegations in the complaint clearly indicated that the shareholder Manohar purported to act on his own but in the name of the company. Under these circumstances the alleged false or dishonest representation or the alleged dishonest misappropriation by Manohar could not be attributed to company even though the company may have reaped the _ benefit of the use of the diesel engine fitted to its other bus. Consequently it would not be possible to uphold the contention of Mr. Hardas that the Magistrate should be directed to proceed against the company with the alternative charges under Section 406 or 403 of the Indian Penal Code. I am however making it clear that the above expressions of opinion on facts are for the purposes of this order with regard to the Company only and the trial Magistrate will be at liberty to arrive at his own conclusions or findings of facts as may be found on the evidence adduced before him 20. In the result the reference is accepted. The charge framed against the accused No. 1 Messrs Syndicate Transport CompanyLimited is quashed. The record be sent back to the Magistrate for proceeding with the trial in accordance with law 21. Reference accepted Indian Kanoon |
Same –gender sexual harassment cases will be dealt under POSH Act: Calcutta High Court | Complaints for Same-gender sexual harassment will now be maintained under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013aka. POSH Act. This judgment was passed by the Calcutta High Court in the case of Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College [WAPA 9141 of 2020] by the single bench of Hon’ble Justice Sabyasachi Bhattacharyya . In the above cited case, a petition was filed challenging the action of the Internal Complaints Committee of an institution to accept a complaint under the Act without jurisdiction on the ground that both the complainant and the respondent belonged to the same gender. It was argued from the Petitioner’s side that POSH Act doesn’t conceive to address the same- gender complaints, and on the other hand, Respondent’s counsel had argued that such complaints are covered under University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institution, so they can be maintained under POSH Act as well. For getting a solution out of all the arguments, HC contended that “there is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act”. HC observed that concept of Sexual Harassment is not static and it must be interpreted in a different manner against the back drop of the social perspective. It was noted that in the POSH Act, 2013 “Sexual Harassment” as term has been pertained to the dignity of the person related to his/her sexuality and gender and the people of the same gender are no different and hence, cannot be excluded. HC opined that “A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section2(n), irrespective of the sexuality and gender of the perpetrator of the act”. | SL 07 27.11.2020 m.b .d.p IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION W.P.A. 91420 Through Video Conference Dr. Malabika Bhattacharjee Internal Complaints Committe Vivekananda College & Ors Mr. Soumya Majumder Mr. Debashis Banerjee Mr. Subrata Saha …For the Petitioner Mr. Kallol Basu Mr. Suman Banerjee …For the Respondent No.5 Mr. Prabir Kumar Ghosh …For the Respondent Nos 1 to 4 Mr. Mit Guha Roy …For the Respondent Nos 3 and 4 The petitioner contends that the respondent authorities acted without jurisdiction in entertaining a complaint on alleged sexual harassment against the petitioner on the complaint of the private respondent despite the fact that both of them are of the same Learned counsel appearing for the petitioner places reliance on a portion of the complaint annexed at page 53 of the writ petition in particular Clauses and to stress the point that the allegation of the private respondent revolved around alleged vilifying and defaming the private respondent in public. It is submitted that the act as alleged could not fall within the purview of “sexual harassment” as contemplated in the Sexual Harassment of Women at Workplace Act Mr. Soumya Majumder appearing for the petitioner places particular reliance on the definition of “sexual harassment” in Section 2(n of the said Act and seeks to impress upon the Court that the acts contemplated therein have no nexus with the present complaint Learned counsel also places reliance on Section 3(2) of the 2013 Act to argue that the acts stipulated therein pre suppose an act of “sexual harassment” having been committed in the first place and thus relate back to the definition of the said term in Section The petitioner next argues that as per Section 19(h) of 2013 Act an employer shall cause to initiate action under the Indian Penal Code or any other law for the time being in force against the perpetrator or if the aggrieved women so desires where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place. It is argued that such an action as envisaged under the Indian Penal Code only pertains to a man being involved in the offence which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the 2013 Act Learned counsel for the petitioner also places reliance upon Vishaka & Ors. vs State of Rajashthan & Ors. reported at 1997(7) JT 384. It is submitted that since the said judgement was the genesis of the 2013 Act the concept of the 2013 Act has to be read and interpreted in the light of the said judgement. It was held therein inter alia that in the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all workplaces the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality right to work with human dignity in Articles 14 15 19(1)(g) and 21 of the Constitution of India and the safeguards against sexual harassment implicit therein. It is further submitted that as per the said judgment the meaning and contents of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse Reading in such light it is argued the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the 2013 Act. In the present case since the gender of the complainant and the respondent is the same the question of the Act being invoked does not arise Mr. Kallol Basu learned counsel appearing for the private respondent argues on the basis of the University Grants Commission Prevention Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Regulations 2015 and submits the said Regulations are broad respondents of all genders implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigours of the Regulations which govern the present parties as well. By placing particular reliance on Regulation 8(2) learned counsel for the private respondent argues that the expression “the respondents shall file his her reply” has been used therein thereby bringing within its purview respondents of both genders This read with the definition of “respondent” in Section 2(m) of the 2013 Act which contemplates “a person” as a respondent indicates clearly according to the private respondent that same gender allegations can also be entertained under the 2013 Act Learned counsel appearing for the respondent authorities adopts the same argument and prays for the writ petition to be dismissed A cursory glance at Section 2(m) of the 2013 Act shows that the term “respondent” brings within its fold “a person” thereby including persons of all genders Although there is substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole there is nothing in Section 9 of the 2013 Actto preclude a same gender complaint under the Act. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other it is not improbable particularly in the context of the dynamic mode which the Indian society is adopting currently even debating the issue as to whether same gender marriages may be legalized That apart the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back drop of the social perspective. Sexual harassment as contemplated in the 2013 Act thus has to pertain to the dignity of a person which relates to her his gender and sexuality which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act. A person of any gender may feel threatened and sexually harassed when her his modesty or dignity as a member of the said gender is offended by any of the acts as contemplated in Section 2(n) irrespective of the sexuality and gender of the perpetrator of the act If Section 3(2) is looked into it is seen that the acts contemplated therein can be perpetrated by the members of any gender even inter se. In such context the language of Section 2(m) Section 2(n) and Section 3 of the 2013 Act is set out below: “2(m) “respondent” means a person against whom the aggrieved woman has made a complaint under section 9 2(n) “sexual harassment” includes any one or more of the following unwelcome acts or behaviour namely: physical contact and advances or a demand or request for sexual favours or iii) making sexually coloured remarks or showing pornography or any other unwelcome physical verbal or non verbal conduct of sexual nature 3 Prevention of sexual harassment No woman shall be subjected to sexual harassment at any 2) The circumstances among circumstances if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: implied or explicit promise of preferential treatment in her employment or implied or explicit threat of detrimental treatment in her employment or implied or explicit threat about her present or future employment status or interference with her work or creating an intimidating or offensive or hostile work humiliating treatment likely to affect her environment of her or health or safety In such view of the matter the act alleged by the private respondent to have been perpetrated by the petitioner as evident the complaint dated September 15 2020 is maintainable under the 2013 Act. Hence the complaint cannot be turned down at the outset Accordingly W.P.A. 9141 of 2020 is dismissed on However it is made clear that the merits of the allegations levelled by the private respondent against the petitioner have not been gone into in any manner by this court. It will be open to the appropriate authorities to decide the matter independently on its own merits without being influenced by the observations made herein in any manner Since it is submitted by the petitioner that the complainant’s cross examination was closed in the meantime due to pendency of the writ petition it is further made clear that the authorities concerned shall give a further opportunity to the petitioner to cross examine the complainant at the There will be no order as to costs Urgent photostat certified copy of this order if applied for be supplied to the parties upon compliance of all necessary formalities ( Sabyasachi Bhattacharyya J |
Possession of Aadhar card, voter id and pan card not proof of Indian citizenship – Patna HC | In the case of Kiran Gupta Vs State Election Commission & Ors. [Letters Patent Appeal No.139 of 2020 in Civil Writ Jurisdiction Case No.19109 of 2019] Patna High Court held that the foreign national does not become an Indian citizen on marriage with a citizen under the Act. The appellant, Kiran Gupta, was born and brought up in Nepal. In 2003, she solemnized her marriage and after that started permanently residing with him in India as his wife. After her marriage, she, (a) got her name entered into the voters list prepared in the year 2008 for elections to the Assembly of Bihar; (b)in her name she has (i) an account with a bank in India, (ii) a Pan Card issued by the Income Tax Department, and (iii) an Aadhaar Card; (c) names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act, 1969 and the respective Rules framed thereunder; (d) pursued her higher education in India; (e) purchased an immovable property in India, vide sale deed. The sale stands recorded with an entry of mutation in her name for which also she paid fee/rent to the Government of Bihar; and (g) relinquished her Nepali Citizenship in February 2016. The issue of her nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat. The respondent challenged her election on the ground of disqualification which she entailed under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj Act, 2006. The State Election Commission, set aside her election, which action she challenged by way of a writ petition. The Court held the appellant to have voluntarily relinquished her Citizenship of Nepal in February 2016, and as such not being a citizen of India, entailed disqualification under the Panchayat Act. Court observed while referring the case of Rajani Kumari Versus State Election Commission &Ors. (2019) 4 PLJR 673 where it was held that, “The State Election Commission was empowered to set aside the appellant’s election under Section 136 (1) of the Panchayat Act. The State Election Commission shall entertain and consider the ‘disqualification’ issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo-moto or by any other person, the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials.” Court further observed that, “The object of the Citizenship Act is to provide for the acquisition and determination of Indian Citizenship. Section 5 of the Citizenship Act deals with such persons who seek Citizenship by registration. In National Human Rights Commission Versus State of Arunachal Pradesh and another, (1996) 1 SCC 742, the Apex Court clarified that a person can be registered as a Citizen of India only if he satisfies the requirement contained in Section 5. The appellant did not ever file for registration of citizenship. An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.” | IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1320 Civil Writ Jurisdiction Case No.191019 Kiran Gupta wife of Ashok Prasad Gupta Resident of Ward No. 10 North Panchayat Manik Chowk Post Office and Police Station Manik Chowk Block Runnisaidpur Distt. Sitamarhi ... Petitioner Appellant s The State Election Commission through the Secretary Veer Chand Patel Marg Sone Bhawan Patna Bihar The State Election Commissioner State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The Joint Election Commissioner State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The Deputy Secretary State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The District Magistrate Sitamarhi Police Station and District Sitamarhi The Sub Divisional Officer Sadar Sitamarhi District Sitamarhi The Block Development Officer Runnisaidpur District Sitamarhi Ranjit Kumar Rai @ Ranjit Rai Son of Musafir Rai Resident of Village and Post Office Manik Chowk Police Station Runnisaidpur District For the appellant Mr. Rajesh Singh Advocate ... Respondents Respondent s Mr. Ranvijay Narain Singh Advocate Mr. Jitendra Singh Advocate Mr. Ranjeet Choubey Advocate For the State Election Mr. Amit Shrivastava Advocate For the State : Mr. Lalit Kishore A.G Mr. Girish Pandey Advocate Mr. Pawan Kumar AC to AG WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE and Date:12 10 2020 The primary issue for consideration before this Court is whether the appellant is a citizen of India or not. 2. Elaborately the following issues arise for considerations in this appeal: i) Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act 2006 on the ground of her not being an Indian citizen ii) Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant iii) Can the appellant s voter ID Card PAN Card Aadhaar Card acquiring education or immovable property in India having a Bank Account function as proof of Indian Citizenship iv) Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar Can the appellant’s status of Statelessness be remedied as per Indian Law WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 3. The present appeal arises from an order and judgment of the learned Single Judge dated January 21 2020 by which the appellant s writ petition assailing the order of the State Election Commission dated August 30 2019 stands dismissed. The appellant s election is set aside on the ground of disqualification contained under sub section 1(a) of Section 136 of the Bihar Panchayat Raj Act 2006. 4. The appellant Kiran Gupta was born and brought up in Nepal. On 18th June 2003 she solemnized her marriage with Ashok Prasad Gupta and after that started permanently residing with him in India as his wife. It is not in dispute that after her marriage she an account with a bank in India a Pan Card issued by the Income Tax Department andan Aadhaar Card names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act 1969 and the respective Rules framed thereunder pursued her higher education in India purchased an immovable property in India vide sale deed dated 12th December 2017. The sale stands recorded with an entry of mutation in her name for which also she paid fee rent to the Government of Bihar andchallenged her election on the ground of disqualification which she entailed under sub section 1(a) of Section 136 of the Bihar Panchayat Raj Act 2006 is well settled. The State Election Commission was empowered to set aside the appellant’s election under Section 136of the Panchayat Act. The decision rendered by this Court in Dhanwanti Devi v. The State Election Commission 2012PLJR 296 relied upon by the appellant does not apply in the given facts. The appellant herself acknowledged that she was born and raised in Nepal before her marriage in 2003 and was not an Indian citizen by birth or descent under Sections 3 and 4 of the Citizenship Act 1955. Based on the facts admitted by the appellant herself the State Election Commission was empowered to set aside her election 10. We need not labour any further for even otherwise the issue is no longer res Integra after the decision of the Full Bench of this Court in Rajani Kumari Versus State Election Commission through its Secretary &Ors. 4 PLJR 673 wherein it held as “We are in agreement that the State Election Commission has got power under sub section(2) of Section 18 of the Bihar Municipal Act 2007 and sub section(2) of Section 136 of the Bihar Panchayat Raj Act 2006 to consider an issue of pre or post election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 then a matter which cannot be decided without adducement of evidence by a competent court and authority in accordance with Law. The State Election Commission shall entertain and consider the disqualification issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo moto or by any other person the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute the Commission shall proceed to consider the same on the basis of unimpeachable materials. Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified the Commission would be required to relegate the parties to a competent court tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo moto or otherwise.” 11. We now deal with Issues No.(ii) &who was born in the territory of India or b) either of whose parents was born in the territory of c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India.” 14. Articles 6 and 7 deal with the rights of Citizenship of individual persons who migrated to India from Pakistan with which we are not concerned. We are also not concerned with Article 8 for it is not the appellant s case that though either of her parents or grandparents were born in India but were ordinarily residing in any country outside India. Article 9 is also not relevant since the appellant has voluntarily not acquired Citizenship of any foreign State. For the adjudication of issue related Articles 10 and 11 are reproduced as under: “10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall subject to the provisions of any law that may be made by Parliament continue to be such citizen 11. Parliament to regulate the right of Citizenship by law.—Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship.” 15. A conjoint reading of these Articles lead to a conclusion of Article 10 providing right for the continuance of Citizenship but subject to the provisions of any law which the Parliament may make 16. Noticeably under Article 11 the Indian Parliament has enacted the Citizenship Act of 1955 providing for the acquisition of Citizenship after the commencement of the Constitution of India 17. Chapter III of Part VI of the Constitution of India deals with the Constitution of Legislature in States. Under Article 173 only a citizen of India is qualified to be chosen to fill up a seat in the Legislature of the State 18. Part IX of the Constitution of India deals with the Panchayats including its composition. Article 243F contained therein reads as under: “243 F. Disqualifications for membership. —(1 A person shall be disqualified for being chosen as and for being a member of a Panchayat— a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned Provided that no persons shall be disqualified on the ground that he is less than twenty five years of age if he has attained the age of twenty one years b) if he is so disqualified by or under any law made by the Legislature of the State 2) If any question arises as to whether a member of a Panchayat has become subject to any of the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 disqualifications mentioned in clause the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may by Law descent Section 4) naturalization persons covered by the Assam Accordincorporation of territorywe are required to discuss only Section 5 dealing with the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 acquisition of Citizenship by registration. The said Section reads as under: “5. Citizenship by registration.—(1) Subject to the provisions of this Section and such other conditions and restrictions as may be prescribed the Central Government may on an application made in this behalf register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or any other provision of this Act if he belongs to any of the following categories namely:— a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India c ) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration d) minor children of persons who are citizens of e) a person of full age and capacity whose parents are registered as citizens of India under clauseof this sub section for sub sectionof Section 6 f) a person of full age and capacity who or either of his parents was earlier citizen of independent India and is ordinarily resident in India for twelve months immediately before making an application for g) a person of full age and capacity who has been registered as afor five years and whobefore making an application for Explanation 1.—For the purposes of clauses an applicant shall be deemed to be ordinarily resident in India if— he has resided in India throughout the period of twelve months immediately before making an application for registration and WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years Explanation 2.—For the purposes of this sub section a person shall be deemed to be of Indian origin if he or either of his parents was born in undivided India or in such other territory which became part of India after the 15th day of August 1947 1 A) The Central Government if it is satisfied that special circumstances exist may after recording the circumstances in writing relax the period of twelve months specified in clausesandand clauseof Explanation 1 of sub sectionup to a maximum of thirty days which may be in different breaks 2) No person being of full age shall be registered as a citizen of India under sub sectionuntil he has taken the oath of allegiance in the form specified in the 3) No person who has renounced or has been deprived of his Indian Citizenship or whose Indian Citizenship has terminated under this Act shall be registered as a citizen of India under sub section The Central Government may if satisfied that there are special circumstances justifying such registration cause any minor to be registered as a citizen 5) A person registered under this Section shall be a citizen of India by registration as from the date on which he is so registered and a person registered under the provisions of clauseof Article 6 or Article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered whichever may be later 6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause c) of sub sectionto any person or a class of persons it may for reasons to be recorded in writing grant such WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 25. The object of the Citizenship Act is to provide for the acquisition and determination of Indian Citizenship. Contextually we refer that in State Trading Corporation of India Ltd. v. Commercial Tax Officer &Ors. AIR 1963 SC 1811 the Hon ble Apex Court clarified that the Indian Constitution and the Citizenship Act exhaustively deal with the issue of Citizenship confined only to a natural person. Further nationality and Citizenship are not interchangeable terms and expression person under the Act have to be natural and not legal entities. Extracting the exact observation would be more apt. 18. … But the question still remains whether nationality" and "citizenship" are interchangeable terms Nationality" has reference to the jural relationship which may arise for consideration under international law. On the other hand "citizenship" has reference to the jural relationship under municipal law. In other words nationality determines the civil rights of a person natural or artificial particularly with reference to international law whereas Citizenship is intimately connected with civic rights under municipal law. Hence all citizens are nationals of a particular State but all nationals may not be citizens of the State. In other words citizens are those persons who have full political rights as distinguished from nationals who may not enjoy full political rights and are still domiciled in that country….” 23. … There is also no doubt in our mind that Part II of the Constitution when it deals with Citizenship refers to natural persons only. This is further made absolutely clear by the Citizenship Act which deals with Citizenship after the Constitution came into force and confines it only to natural persons. We cannot accept the argument that there can be citizens of this country who are neither to be found within the four corners of the Citizenship Act. We are of opinion that these two WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 provisions must be exhaustive of the citizens of this country Part II dealing with citizens on the date the Constitution came into force and the Citizenship Act dealing with citizens thereafter. We must therefore hold that these two provisions are completely exhaustive of the citizens of this country and these citizens can only be 26. The Constitution Bench of the Hon’ble Apex Court in Izhar Ahmad Khan v. Union of India AIR 1962 SC 1052 while dealing with the validity of Section 9 which deals with termination of Citizenship held as under: “38. The next point to consider is about the validity of Section 9(2) itself. It is argued that this rule is ultra vires because it affects the status of Citizenship conferred on the petitioners and recognized by the relevant articles of the Constitution and it is urged that by depriving the petitioners of the status of Citizenship their fundamental rights under Article 19 generally and particularly the right guaranteed by Article 19(1)(e) are affected. It is not easy to appreciate this argument. As we have already observed the scheme of the relevant articles of Part II which deals with Citizenship clearly suggests that the status of Citizenship can be adversely affected by a statute made by the Parliament in exercise of its legislative powers. It may prima facie sound somewhat surprising but it is nevertheless true that though the citizens of India are guaranteed the fundamental rights specified in Article 19 of the Constitution the status of Citizenship on which the existence or continuance of the said rights rests is itself not one of the fundamental rights guaranteed to anyone. If a law is properly passed by the Parliament affecting the status of Citizenship of any citizens in the country it can be no challenge to the validity of the said Law that it affects the fundamental rights of those whose Citizenship is thereby terminated Article 19 proceeds on the assumption that the person who claims the rights guaranteed by it is a citizen of India. If the basic status of Citizenship is validly WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 terminated by a Parliamentary statute the person whose Citizenship is terminated has no right to claim the fundamental rights under Article 19. Therefore in our opinion the challenge to Section 9(2) on the ground that it enables the rule making authority to make a rule to deprive the citizenship rights of the petitioners cannot be 27. Section 5 of the Citizenship Act deals with such persons who seek Citizenship by registration. In National Human Rights Commission Versus State of Arunachal Pradesh and another 1996) 1 SCC 742 the Apex Court clarified that a person can be registered as a Citizen of India only if he satisfies the requirement contained in Section 5 28. It is an admitted fact that the petitioner was born and brought up in Nepal. She married her husband an Indian citizen in 2003 and has been resident in Indian since. Her acquisition of Indian Citizenship is governed by the provisions of the Citizenship Act 1955. The Citizenship Act lays out the different avenues by which a person can become an Indian citizen. Section 5 lays out the provisions for Citizenship by registration. Under Section 5(1)a person who is married to a citizen of India and ordinarily resident in India for at least seven years may make an application for Citizenship. A conjoint reading of the Citizenship Act with Entry 17 of List I of the Seventh Schedule of the Constitution tells us that it is WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 only the Central Government which is empowered to confer Citizenship upon Foreign nationals. Therefore the adjudicating body for citizenship acquisition is the Central Government. The petitioner has admitted that she has not applied for Citizenship under the 29. In our considered view it is not that anyone or everyone person) can as a matter of right claim Citizenship of India. Power and discretion of conferring citizenship vests with the Central Government which of course has to be exercised as per settled principles of Law. Further the Section itself categorizes the persons entitled to exercise their right to file an application requesting for registration as a citizen of India. Unless decided the mere filing of an application does not confer any right of Citizenship. The appellant s case would fall under clauseof sub sectionof Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then significantly and undisputedly she never sought Citizenship by way of registration more so after voluntarily relinquishing her Citizenship of Nepal in February 2016. An oath of allegiance is necessarily required to be taken by the appellant. Hence by her actions and conduct she precluded herself from being considered as a citizen under the Citizenship Act WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 30. Indian citizens can marry a foreign national under the Special Marriage Act 1954. The foreign national does not become an Indian citizen on marriage with a citizen under the Act. After the marriage the foreign national has an option to get registered as an Indian citizen. Even then the person must fulfil the requirement of residency before they can apply for Indian Citizenship 31. Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship. The Citizenship Act does not provide for a scenario where a person residing in India upon relinquishing her his original Citizenship is automatically considered to be a citizen of India. Possibility of a person though not the appellant migrating to a third country cannot be ruled out. As such continuous and uninterrupted stay in India cannot be a factor determining in anticipation of a person choosing to exercise right seeking Citizenship under the Citizenship Act. 32. The appellant failed to follow the procedure as set out in the Citizenship Act. Considered thus neither under the Indian Constitution nor the Laws framed thereunder any right of Citizenship can be said to have conferred upon her. The Issues are answered 33. This now brings us to the ancillary issue No.(iii) as to whether the documents produced by the appellant can form the basis WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 of conferring Citizenship upon her or not. The answer in the light of the discussion cannot be in the affirmative 34. The Hon’ble Apex Court in Sarbananda Sonowal v Union of India 5 SCC 665 lays down certain principles in dealing with cases of illegal migrants. One of them being that the burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act 35. The principles stand reiterated in Sarbananda Sonowal II) v. Union of India 1 SCC 174 36. The Hon’ble Supreme Court in Rupjan Begum v Union of India1 SCC 579 held the certificate issued by the Gram Panchayat Secretary not to be proof of Citizenship clarifying further that such right be determined under the provisions of 37. The Hon’ble Supreme Court in Bhanwaroo Khan v Union of India 4 SCC 346 held that long stay in the country and enrolment in the voters list would not confer any right on an alien to continue to stay in the country. Further elaborated the right of Citizenship be determined both under the Constitution of India as also the Citizenship Act. WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 38. This Court in Vijoy Kumar Chaudhary v The State Election Commissioner has held that the voter ID is not sufficient and conclusive evidence of Citizenship Enrolment in a voter roll is based on the applicant filing a declaration with authority via Form 6 under Rules 13(1) and 26 of Registration of Electors Rules 1960 stating that they are a citizen of India. The legal status of the applicant s Citizenship precedes her enrolment on the electoral rolls. If such a declaration of Citizenship is found to be false the applicant is liable for punishment. 39. The Hon’ble Supreme Court in State of U.P. v Rehmatullah 2 SCC 113 has reiterated that the right of a person of Citizenship is considered under the Citizenship Act and observed as under: “11. In Shuja Ud Din v. Union of Indiathis Court speaking through Gajendragadkar J. as he then was It is now well settled that the question as to whether a person who was a citizen of this country on January 26 1950 has lost his Citizenship thereafter has to be determined under the provisions of Section 9 of the Citizenship Act 1955that this question has to be determined by the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 Central Government before a person who was a citizen of India on January 26 1950 could be deported on the ground that he has lost his citizenship rights thereafter under Section 9 of the Citizenship Act. Unless the Central Government decides this question such a person cannot be treated as a foreigner and cannot be deported from the territories 12. In Abdul Sattar Haji Ibrahim Patel v. State of Gujarat2 SCJ 461 :Gajendragadkar C.J. speaking for a Bench of five Judges approved the decisions in the cases of Izhar Ahmad Khan and Syed Mohd. Khan it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his Citizenship of India and has acquired that of a foreign country. That an inquiry under Section 9 of the Citizenship Act can only be held by the Central Government was again reaffirmed by this Court in Mohd. Ayub Khan v. Commissioner of Police Madras2 SCR 884].” 40. Reading of the Representation of the People Act 1950 shows that non citizens are disqualified from entering their names in the voter list. Additionally under Section 22 it also contemplates a possibility that an erroneous or defective entry is made in the voter list and such cases provide the registration officer with authority to correct the voter list. The Act does not provide that name in the electoral roll would be proof of Citizenship of India WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 Further to obtain a Voter identity card and get a name added to the voter list a person need only submit recent passport size photo b) proof of residence andproof of age along with the relevant Form. Persons are not required to submit any evidence of Citizenship for this registration. Necessary documents to obtain the card do not act as proof of Citizenship it indicates that voter identity card and name on voter list would not be proof of Citizenship 41. Mere registration of a person’s name in the voter list ipso facto does not confer Citizenship. On this issue the only exception being the judicial pronouncement of the Hon ble Apex Court in Lal Babu Hussein v. Electoral Registration Officer 7 SCC 59 the Hon ble Apex Court elaborately discussed the issue of necessity use and benefit of Pan Card issued under the provisions of Section 139AA of the Income Tax Act 1961. Even here the Court did not hold that possession of such a card not to confer any right of WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 43. The purpose of the PAN card is to facilitate the payment of taxes to the Indian State which foreigners may also be required to 44. The Gauhati High Court in Mustt. Rabiya Khatun v The Union of India4986 2016] Jabeda Begum @ Jabeda Khatun v. The Union of India &Ors.[WP© 7451 2019] Md. Babul Islam v. Union of India3547 2016] has held a Pan Card not to be a piece of valid evidence establishing persons citizenship of 45. This Court in Narendra Narayan Das v. State of Bihar AIR 2008 Pat 124 while examining the issue of a citizen of Nepal in the backdrop of the Nepal Citizenship Act held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act. 46. The High Court of Bombay in Motimiya Rahimmiya v. State of Maharashtra AIR 2004 Bombay 460 held as under: “9. In the instant case the plaintiffs have not proved their birth in India and that is the basic requirement of claiming Citizenship. Therefore the trial Court has rightly rejected the claim and contentions of the plaintiffs. 10. Counsel for the respondent State relied upon the judgment of the Supreme Court reported in4 SCC 346: AIR 2002 SC 1614 Bhanwaroo Khan v. Union WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 of India and the another judgment reported in9 SCC 281 A.I Lawyers Forum for Civil Liberties v. Union of India In the case of Bhanwaroo Khan the Supreme Court has held that long stay in country and enrolment in voters list does not confer any right to an alien to continue to stay in country. In view of this and in view of the aforesaid reasons all the Appeals are dismissed with Civil Applications. Certified copy 47. The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more not citizenship Section 9 of the Aadhaar Act 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder. Hence the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship. The Registration Act 1908 which provides for mutation of names in the case of transfer of property only requires that document by which property is transferred be registeredalong with affixing of passport size photo thumbprint on the document8 SCC 233 held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1)of the Representation of the People Act 1951 51. Hence Issue No.cannot be answered in favour of the appellant. 52. We now deal with Issues No.of the Constitution mandates the State to foster respect for international law and treaty obligations in the dealings of organized people with one another 56. The UNHRC 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are presently the leading multilateral treaties about the prevention and reduction of statelessness. Both conventions simply confirmed the prevailing international law custom of a state s duty to prevent and reduce statelessness. While India is not a signatory to WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 either Statelessness Convention this duty to prevent statelessness has been consolidated in several other international legal instruments that India is a party to. This includes Article 15 of the Universal Declaration of Human Rights Article 24 of the International Covenant on Civil and Political Rights Article 9 of the Convention on Elimination of All Forms of Discrimination Against Women Article 5 of the International Convention of Elimination of All Forms of Racial DiscriminationArticle 7 of the Convention on the Rights of the Child and the Convention on the Nationality of Married Women. It may be helpful to reproduce some of these provisions here. 57. Article 15 of the UDHR states “(1) Everyone has the right to a nationality 2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” 58. Article 5 of the ICERD is as follows “In compliance with the fundamental obligations laid down in article 2 of this Convention States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone without distinction as to race colour or national or ethnic origin to equality before the law notably in the enjoyment of the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 a) The right to equal treatment before the tribunals and all other organs administering justice c) Political rights in particular the right to participate in elections to vote and to stand for election on the basis of universal and equal suffrage to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service d) Other civil rights in particular i) The right to freedom of movement and residence within the border of the State ii) The right to leave any country including one s own and to return to one s country iii) The right to nationality iv) The right to marriage and choice of spouse …” 59. Article 9 of the CEDAW is as follows “1. States Parties shall grant women equal rights with men to acquire change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife render her stateless or force upon her the nationality of the husband 2. States Parties shall grant women equal rights with men with respect to the nationality of their children.” 60. It is important to note that India has not made any reservations against any of these listed articles. WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 61. Additionally Article 15(2) of the UDHR prohibits arbitrary deprivation of nationality. This is an important protection in situations where the denial of nationality leads to statelessness. India played an active role in the introduction of this right into the draft Article 15during the UDHR drafting sessions. Ms. Hansa Mehta the Indian representative at the UDHR drafting sessions called the right against arbitrary deprivation of nationality as ‘the fundamental right’ 62. India and Nepal have a history of bilateral engagement Article7 of the Treaty of Peace and Friendship between the Government of India and the Government of Nepal 1950 promises the grant of privileges relating to movement residence ownership of property trade and commerce etc. between the two countries on a reciprocal basis. 63. Rule 4(1)(g) of the PassportRules 1950 exempts Nepalese and Bhutanese from carrying a valid passport when entering India from land or air from the Nepalese or Bhutanese 64. Nepalese citizenship law is primarily enshrined in two The Constitution of Nepal The Nepal Citizenship Act 2063Act 1920. Nepalese Citizenship is terminated upon the voluntary acquisition of Citizenship of another country including India. To re acquire Nepalese Citizenship the former citizen of Nepal must return to reside in Nepal and submit a notification to the concerned authority for reinstation of Citizenship 66. There can be little doubt that the petitioner failed to register herself as a citizen under Section 5 of the Citizenship Act Her voter ID cannot function as proof of Citizenship since the status of Indian Citizenship precedes the enrolment onto the electoral roll. It must be emphasized that the conferral of Indian Citizenship is the prerogative of the Central Government. Whether the petitioner intentionally misrepresented facts in her Form 6 application for her voter ID or whether it was a bona fide mistake as she presumed the electoral roll process was sufficient as registration for Indian Citizenship is a question we will not delve into 67. However we cannot ignore the question of the petitioner s current legal status. She relinquished her Nepalese Citizenship in 2016. She does not seem to possess any other nationality. She owns assets immovable property here. She has continuously resided in India since her marriage and has two WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 children both resident in India from the wedlock. These facts together perhaps do demonstrate her intention to make India her permanent home domicile. There is an additional bureaucratic hurdle in registering herself under the Citizenship Act the documents to be attached for an application under Section 5 per Form III under Rule 5(1)(a) of the Citizenship Rules 2009 include a copy of valid Foreign Passport and a copy of the valid Residential permit. To re obtain her Nepalese Citizenship she will have to return to "reside" in Nepal before applying for Citizenship away from her immediate family in India 68. Yet at the same time this Court is not permitted to direct the Central Government to grant the petitioner Indian citizenship. This would impinge upon the Executive s functions However in light of the peculiar situation of the petitioner her ordinary residence and family life in India and India s international law obligations to prevent statelessness we direct that upon receipt of the petitioner’s application if so filed the appropriate authority may consider her application expeditiously keeping in mind the complications that have emerged in her legal status as enumerated 69. We thus answer the issues as under: WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 70. Given the law laid down by this Court in Rajani Kumarithe State Election Commission was empowered to set aside the petitioner’s election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian Issue Nos.(ii) &mere relinquishment of Citizenship of Nepal does not confer upon her any right of Indian Citizenship which right flows only from and under Part II of the Constitution of India and the Citizenship Act Issue No.Rupjan Begum Bhanwaroo Khan and State of U.P. v. Rehmatullah supra) and the other judicial pronouncements discussed mere possession of a Pan Card a Voter ID Card or an Aadhar Card cannot be said to be proof of Indian Citizenship. ADDITIONAL DIRECTION Issue No.(v WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 73. Petitioner appellant s application under the Citizenship Act as and when filed shall be processed and disposed of expeditiously per law 74. For all the reasons mentioned above we do not find any illegality or perversity in the impugned judgment dated January 21 2020 passed in CWJC No.191019 titled as Kiran Gupta Versus the State Election Commission & Ors. However we dispose of the present appeal with the observations mentioned above. 75. No order as to costs. S. Kumar J. I agree (S. Kumar J |
Parties adopting International Law in the agreement are not barred from taking recourse under the I&B Code: NCLAT | NCLT has jurisdiction to entertain an application under the IBC the parties cannot derive the advantage of the terms of the. An agreement where parties agreed that any suit or case is maintainable only in a Court outside India. The order passed by the NCLAT New Delhi in its decision in Excel Metal Processors Limited Benteler Trading International GMBH and Anr (Company Appeal (AT) (Insolvency) No. 172 of 2020) by Hon’ble Shri Justice S. J. Mukhopadhaya and Justice A.I.S. Cheema The facts of the case were such that – Mr. Imran Iqbal Khan who is the director of the Corporate debtors/appellant company filed an application to substitute himself as the appellant in place of Corporate Debtor and transpose the appellant through Interim Resolution Professional. The tribunal allowed Mr. Imran Iqbal to be treated as sole appellant and delete the name of the first appellant/Corporate debtor. The Respondent/Operational Creditor recorded an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 against Excel Metal Processors Private Limited/Corporate Debtor asserting that the ‘Corporate Debtor’ submitted default on 27th March 2016 in making the installment to a degree of US $1,258,219.42 comprehensive of premium @ 15% per annum. Challenging the order of adjudicating authority the counsel on behalf of Appellant/Mr. Imran submitted referring the Understanding came to between the gatherings and presented that according to the Arrangement and as the Workplace of the Respondent/Operational Creditor is in Germany, any suit or case is viable just in the Court at Germany. No case can be recorded in any Court in India. Subsequently, Guidance has brought up the issue of the locale of the NCLT, in engaging the application under Segment 9 of the I&B Code. But in the landmark judgment of NCLAT in the case of Binani Industries Limited vs. Bank of Baroda and Anr tribunal held that ‘Corporate Insolvency Resolution Process’/ insolvency proceedings is not a ‘suit’ or a ‘litigation’ or a ‘money claim’ for any litigation; No one is selling or buying the ‘Corporate Debtor’ a ‘Resolution Plan’; It is not an auction; it is not a recovery, which is an individual effort by the creditor to recover the dues through a process that had debtor and creditor on opposite sides; and it is not liquidation. The object is merely to get resolution brought about so that the Company do not default on dues. Talking about the jurisdiction Appellate Authority according to section 408 of the Organizations Act, 2013, the NCLT has been comprised in various States. As far as the said arrangement, the Focal Government has informed and vested the force on individual Public Organization Law Councils to manage the matter inside its region, where the enrolled workplaces of the Organizations are arranged. According to Segment 60(1) of the I&B Code, “The Settling Authority, comparable to bankruptcy goal and liquidation for corporate people including corporate borrowers and individual underwriters thereof will be the Public Organization Law Court having regional locale over where the enrolled office of the corporate individual is found”. | NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 7819 IN THE MATTER OF: Excel Metal Processors Limited Appellant Benteler Trading International GMBH and Anr. Respondents For Appellant: Mr. Javeed Hussain amd Mr. Ashish Rana O R D E R 21.08.2019 An application for substitution has been filed by Mr. Imran Iqbal Khan Director of ‘Corporate Debtor’ M s Excel Metal Processor Limited to substitute him as the Appellant in place of M s Excel Metal Processors Limited and transpose M s Excel Metal Processors Limited through ‘Interim Resolution Professional’ as Respondent. However as we find that Mr. Imran Iqbal Khan is already Appellant No.2. we allow the Appellant to delete the name of the 1st Appellant M s Excel Metal Processors Limited from the Cause Title and to treat Mr. Imran Iqbal Khan as sole Appellant. M s Excel Metal Processors Limited through ‘Interim Resolution Professional’ is allowed to be impleaded as 3rd Respondent. Counsel for the Appellant will make necessary corrections in the Cause Title of the paper book and the Cover Page in course of the day. The Respondent Benteler Trading International GMBH a German Company filed application under Section 9 of the Insolvency and Bankruptcy Code 2016 against Excel Metal Processors Private Limitedalleging that the ‘Corporate Debtor’ committed default on 27th March 2016 in making the payment to an extent of US $1 258 219.42 inclusive of interest @ 15% per annum. The Adjudicating Authority Mumbai Bench by impugned order dated 25th June 2019 having admitted the application the Appellant Imran Iqbal Khan Director has challenged Company Appeal(Insolvency) No. 7819 the said order. Learned Counsel appearing on behalf of the Appellant referred to the Agreement reached between the parties and submitted that as per the Agreement and as the Office of the Respondent Benteler Trading International GMBH is in Germany any suit or case is maintainable only in the Court at Germany. No case can be filed in any Court in India. Therefore Counsel has raised the question of jurisdiction of the National Company Law Tribunal Mumbai Bench in entertaining the application under Section 9 of the I&B Code. However we are not inclined to accept the aforesaid statement as it is now settled and decided by this Appellate Tribunal in Binani Industries Limited vs. Bank of Baroda and Anr. Company Appeal Insolvency) No.818 etc. decided on 14th November 2018 wherein it was held that ‘Corporate Insolvency Resolution Process’ insolvency proceedings is not a ‘suit’ or a ‘litigation’ or a ‘money claim’ for any litigation No one is selling or buying the ‘Corporate Debtor’ a ‘Resolution Plan’ It is not an auction it is not a recovery which is an individual effort by the creditor to recover the dues through a process that had debtor and creditor on opposite sides and it is not liquidation. The object is mere to get resolution brought about so that the Company do not default on dues. Pursuant to Section 408 of the Companies Act 2013 the National Company Law Tribunal has been constituted in different States. In terms of the said provision the Central Government has notified and vested the power on respective National Company Law Tribunals to deal with the matter within its territory where the registered Offices of the Companies are situated. As per Section 60(1) of the I&B Code “The Adjudicating Authority in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate person is located”. As admittedly the Registered Office of the ‘Corporate Debtor’ namely Excel Metal Processors Private Limited is situated at 132 B Mittal Towers Nariman Point Mumbai 400021 we hold Company Appeal(Insolvency) No. 7819 that the National Company Law Tribunal Mumbai Bench has the jurisdiction to entertain an application under Section 9 of the I&B Code and the Appellant cannot derive advantage of the terms of the Agreement reached between the parties. Next it was pointed out that the ‘Corporate Debtor’ was not served with the Demand Notice in terms of Section 8(1) of the I&B Code. However from the record we find that Demand Notice under Section 8(1) of the I&B Code was issued by the Respondent ‘Operational Creditor’ on 6th March 2018 demanding the repayment of US $971 412.98 plus ancillary obligations 15 % p.a. amounting to US $286.804.44 and despite receiving of the said Demand Notice the ‘Corporate Debtor’ had not replied nor repaid the outstanding dues. The Adjudicating Authority has as such not accepted such plea based on record. In spite of the same we gave option to the Appellant to suggest whether the Appellant or the ‘Corporate Debtor’ would agree to repay the debt as payable to the ‘Operational Creditor’ but it is informed that the ‘Corporate Debtor’ or the Appellant is not in a position to do so. For the reasons aforesaid we are not inclined to interfere with the impugned order dated 25th June 2019 and in absence of any merit the Appeal is accordingly dismissed. No cost. Justice S. J. Mukhopadhaya] Justice A.I.S. Cheema] MemberKanthi Narahari] MemberCompany Appeal(Insolvency) No. 7819 |
Benefit of Special Category Reservation granted: Karnataka High Court | In the case of Kumari Anjali R. versus Karnataka Examination Authority [Writ Petition No.- 11576 of 2020(EDN- CET)], the Karnataka high court observed that because of the minor error in describing the reservation category, the candidate who was aspiring for a seat in engineering course cannot be denied a seat in the CET examination. This very writ petition was represented by the applicant’s father under Article 226 & 227 of the constitution of India to consider the petition, allow the applicant to make a correction in the CET application form and to consider the candidate eligible for special category reservation under the category of EX CAPF. Articles 226 and 227 are the parts of the constitution which define the powers of the High Court. Article 226, empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). The Karnataka Examination Authority dismissed the candidature of the applicant who is the daughter of an Ex. Border Security Force soldier because she made a mistake in the description of the reservation category. The court was of the view that since the petitioner provided sufficient material which included a certificate which proved that she is the daughter of Ex. BSF soldier who defended the frontiers of the nation for a period exceeding twenty years and has retired, therefore she was rightly entitled to enjoy the privilege of the reservation. The court further stated that it was a minor mistake committed by the petitioner in describing the reservation category however the court was of the opinion that it was not a mistake at all as BSF is apparently a defense organization too which was statutorily constituted under the provisions of the Border Security Act of 1968; “the provisions of the Act and the Rule made thereunder make it abundantly clear that the servicemen of BSF function as the soldiers guarding the borders of the country, therefore, this aspect of the matter ought to have been adverted to by the respondent before denying a seat to the petitioner under the ‘Special Category’ regardless of the description mentioned by the candidate, who is admittedly a minor”. | IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER 2020 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11576 OF 2020BETWEEN: KUMARI ANJALI .R D O RAVINDRA S.V. AGED ABOUT 17 YEARS RESIDING AT LIG 548 HUDCO COLONY KALLAHALLI 2ND PHASE VINOBANAGAR SHIVAMOGGA 577 024. REPRESENTED BY HER FATHER ie. NATURAL GUARDIAN RAVINDRA S.V. S O VENKATARAMU AGED ABOUT 44 YEARS RESIDING AT LIG 548 HUDCO COLONY KALLAHALLI 2ND PHASE VINOBANAGAR SHIVAMOGGA 577 024. BY SRI. RAKESH B BHATT ADVOCATE) KARNATAKA EXAMINATION AUTHORITY SAMPIGE ROAD 18TH CROSS MALLESHWARAM BENGALURU 560 012. REPRESENTED BY ITS EXECUTIVE DIRECTOR BY SRI.N.K.RAMESH ADVOCATE) …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE REPRESENTATION DATED 07.10.2020 ANNEXURE F AND PERMIT THE PETITIONER TO RECTIFY THE CET APPLICATION FORM AND ALSO CONSIDER PETITIONERS ELIGIBILITY FOR SPECIAL CATEGORY RESERVATION UNDER THE CATEGORY OF EX CAPF. THIS WRIT PETITION COMING ON FOR PRELIMINARY ‘B’ GROUP THIS DAY THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING: Petitioner being daughter of an Ex. Border Security Force soldier aspiring for a seat in Engineering course under “Special Category Reservation” is knocking at the doors of writ court seeking a direction to the respondent to permit her to rectify a mistake in describing the category of reservation in her CET Application Form. After service of notice the respondent Karnataka Examination Authority having entered appearance through its Senior Panel Counsel resists the Writ Petition making justification of rejection of petitioner candidature because of the mistake in the description of the reservation category. 3 3. Having heard the learned counsel for the parties and having perused the petition papers this Court is inclined to grant indulgence in the matter for the following reasons: a) petitioner has produced sufficient material including a certificate dated 31.08.2020 which indisputably shows that she is the daughter of Ex.BSF soldier bearing Service No.970090106 who was a combatant member during the period between 01.02.1997 and 31.05.2017 her father thus having defended the frontiers of the nation for a period exceeding twenty years has retired from Unit 84 BN.BSF and therefore petitioner is entitled to the benefit of reservation under the Special Category earmarked for Ex. Defence BSF soldiers b) arguably a small mistake is committed by the petitioner a minor daughter of the BSF soldier in describing the reserved category as ‘Ex.Defence’ in the CET application form however this Court is of a considered opinion that it is not at all a mistake inasmuch as the BSF is apparently a Defence Organisation too having been statutorily constituted under the provisions of the Border Security Force Act 1968 the provisions of the Act and the Rules made thereunder make it abundantly clear that the servicemen of BSF function as the soldiers guarding the borders of the country therefore this aspect of the matter ought to have been adverted to by the respondent before denying a seat to the petitioner under the ‘Special Category’ regardless of the description mentioned by the candidate who is admittedly a minor and c) it hardly needs to be stated that the provisions for special preferential treatment of defence personnel and their children in the matter of education and employment have a great underlying philosophy and therefore they should be construed liberally for effectuating the purpose for which they have been made by the Central State Government too technical an approach would defeat their very purpose in any circumstance before rejecting the applications the officials having a word with the candidate and his her parents would infuse fairness in the action which is an essential element of justice more is not necessary to specify. In the above circumstances this writ petition succeeds a Writ of Mandamus issues directing the respondent to permit the petitioner to avail the benefit of ‘Special Category Reservation’ under Ex.CAPF Ex.Army Ex.soldier as the case may be. Costs made easy. JUDGE Sd |
No iota of Substance as to Construe Intention of Accused to kill the Injured: High Court of Shimla | Even if statement of complainant is taken to be true as it is then also, there is no iota of substance in the said statement so as to construe intention of petitioner-accused to kill the injured. This honorable judgement was passed by High Court of Shimla in the case of Lekh Ram Versus State of Himachal Pradesh [Cr.M.P.(M) No.354 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The petition was filed by petitioner seeking regular bail under Section 439 Code of Criminal Procedure, in case FIR No.9 of 2021, registered in Police Station Arki, District Solan, H.P., under Sections 341, 323, 324, 325, 307 and 506 of the Indian Penal Code, wherein it is stated that, the Pooja Devi had telephonically informed Police Chowki Sarli that petitioner-accused had beaten her and her father-in-law, whereupon, police party had rushed to the spot and statement of Pooja Devi was recorded under Section 154 Cr.P.C., she along with her father-in-law and 8 years old daughter had been working in the fields and in a water channel. At about 4.00 p.m. petitioner-accused came to the fields of complainant and said that on that day it was his turn for irrigation and why water was utilized by complainant party from the water channel. Whereupon, complainant had explained that her daughter had taken little water for playing, but petitioner accused, out of anger, had hit on her neck and head with iron spade and when complainant tried to run to save her, petitioner accused had beaten her after restraining her and during this quarrel, her clothes were torn and when her father-in-law tried to save her, he was also hit by petitioner-accused with spade causing injuries on his left arm, head and other parts of the body. According to learned counsel for petitioner, “complainant party was wrong, who had interrupted the water infringing the rights of irrigation of the petitioner-accused and the injury is grievous and dangerous to life. However, as a matter of fact, from the date of incident i.e. 07.02.2021 till 16.02.2021, there was no such allegation on the part of the complainant that petitioner-accused was having intention to kill the injured. There is no iota of substance in the said statement so as to construe intention of petitioner-accused to kill the injured.” | Hig h C o urt of H.P on 01 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No.3521 Reserved on: 19.03.2021 Date of Decision: April 1 2021 Lekh Ram …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. Sudhir Thakur Senior Advocate alongwith Mr.Karun Negi Advocate. For the Respondent: Mr.Gaurav Sharma Deputy Advocate General. Vivek Singh Thakur JBy way of this petition petitioner is seeking regular bail under Section 439 Code of Criminal Procedurein case FIR No.21 dated 07.02.2021 registered in Police Station Arki District Solan H.P. under Sections 341 323 324 325 307 and 506 of the Indian Penal Codewith water twice and poured the water in the fields. At about 4.00 p.m. petitioner accused came to the fields of complainant and said that on that day it was his turn for irrigation and why water was utilized by complainant party from the water channel. Whereupon complainant had explained that her daughter had taken little water for playing but petitioner accused out of anger had hit on her neck and head with iron spade and when complainant tried to run to save her petitioner accused had beaten her after restraining her and during this quarrel her clothes were torn and when her father in law tried to save her he was also hit by petitioner accused with spade causing injuries on his left arm head and other parts of the body. According to complainant thereafter petitioner accused had gone towards his own fields but extending threats to kill the complainant and her family. 4. After registration of FIR investigation was started. During investigation complainant and her father in law were subjected to medical examination whereupon Medical Officer Hig h C o urt of H.P on 01 04 HCHP 3 with respect to injuries received by father in law of complainant had opined that injury No.2 was grievous in nature. Whereas injury No.3 was grievous as well as dangerous to life. Whereupon Sections 324 325 and 307 of IPC were also added in the FIR and on 16.02.2021 at about 7.30 p.m. petitioner accused was arrested and after remaining three days in police custody he has been sent for judicial custody on 19.02.2021. 5. It is submitted on behalf of petitioner accused that investigation in the case is almost complete and petitioner accused after remaining in police custody is now in judicial custody and is no further required by the police for interrogation for the purpose of investigation and nothing is to be recovered from him. According to learned counsel for petitioner complainant party was wrong who had interrupted the water infringing the rights of irrigation of the petitioner accused and injuries found on the body of complainant party have not been inflicted by the petitioner accused but have been received by them during quarrel on the spot while running from the spot. It is further submitted that petitioner accused has been arrested after opinion of the Doctor that injury No.3 is grievous and dangerous to life. However as a matter of fact from the date of incident i.e. 07.02.2021 till 16.02.2021 there was no such allegation on the part of the complainant that petitioner accused was having intention to kill the injured. It is further stated that even if statement of complainant is taken to be true as it is then Hig h C o urt of H.P on 01 04 HCHP 4 also there is no iota of substance in the said statement so as to construe intention of petitioner accused to kill the injured. 6. Lastly it is submitted on behalf of petitioner that petitioner accused is permanent resident of the same village and having roots in the society and is ready to abide by any condition imposed by the Court at the time of enlarging him on bail to ensure his presence during trial. 7. Considering entire facts and circumstances of the case and also period of detention I am of the opinion that at this stage petitioner accused is entitled for bail. 8. Accordingly petition is allowed and petitioner is ordered to be released on bail in case FIR No.21 dated 07.02.2021.2021 registered in Police Station Arki District Solan H.P. on his furnishing personal bond in the sum of `50 000 with one surety in the like amount to the satisfaction of the trial Court within two weeks from today upon such further conditions as may be deemed fit and proper by the trial Court including the conditions enumerated hereinafter so as to ensure the presence of petitioner accused at the time of trial and also subject to following 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. Hig h C o urt of H.P on 01 04 HCHP 5 He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses 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 she 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 in case petitioner indulge in repetition of similar offence(s) then his bail shall be liable to be cancelled on taking appropriate steps by prosecution and that the petitioner shall not leave the territory of India without prior information. that the petitioner shall inform the Police Court his contact number and shall keep on informing about change in address and contact number if any in future. 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 condition imposed upon him his bail shall be liable to be cancelled. In such Hig h C o urt of H.P on 01 04 HCHP 6 eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 11. 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 the merits of the case in any manner and are strictly confined for the disposal of the bail application. 13. Petition is disposed of in aforesaid terms. 14. Copy dasti. 15. Petitioner is permitted to produce a copy of this judgment downloaded from the web page of the High Court of Himachal Pradesh before the authorities concerned and the said authorities shall not insist for production of a certified copy. Judge. April 1 2021 |
It is deemed that sufficient notice of the listing of the case and the hearing is given if there is sufficient compliance with the requirements of Order 39 Rule 4 CPC : Jammu and Kashmir High Court | Once procession is taken after the acquisition proceedings stood concluded and the final award passed, the court will not interfere in the decision. This was held in the judgment passed by a two- judge bench comprising of HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR and HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter sufficient compliance with the requirements of Order 39 Rule 4 CPC V. Union Territory of J&K &Ors. [CMAM No. 52/2010], dealt with an issue where the petitioner filed a petition challenging the judgment and order for construction of the All India Medical Institute at Awantipora. Counsel for the appellants urged that the judgment and order impugned was passed without hearing the appellants. It was stated that the writ petition was listed on 30th of December, 2019, but the Bench collapsed due to non-availability of the Hon’ble Judge due to some unavoidable circumstances. It was urged that the Registrar Judicial of the Srinagar Wing of the High Court, accordingly, on the same day, notified that the cases would not be taken up by the said Bench. It was stated that the counsel for the petitioners-appellants, on coming to know that the Hon’ble Judge would not be holding the Court, was under a bona fide belief that the cases would be adjourned in the normal course and, therefore, was not personally present when the case was taken up by a Coordinate Bench upon a request having been made by the Counsel for the respondents on the same date. A lot of emphasis was laid by the counsel for the respondents that the entire process of acquisition had since been completed before the filing of the writ petition and, therefore, according to latest Apex Court judgments, the Courts would not interfere in the acquisition matters which had attained finality by passing of the award as also by delivery of possession. It was, therefore, urged that notwithstanding the fact that the counsel for the petitioners was not present, the outcome of the writ petition would, however, remain unchanged. The issue that arises for consideration is as to whether counsel for the appellants had sufficient notice in terms of provisions of Order 39 Rule 4 of CPC before the Writ Court could modify the order. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that In the court’s opinion, counsel for the appellants, therefore, must be deemed to have sufficient notice of the listing of the case and the hearing therein, especially in view of the fact that the objections had been filed by the respondents to the writ petition. In our opinion, there was sufficient compliance with the requirements of Order 39 Rule 4 CPC in the present case. Click here to view judgement Judgement reviewed by – Vaishnavi Raman | IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on:19.02.2020 Pronounced on:23.06.20202 LPA No.21 2020 CM No.501 2010 Manzoor Ahmad Bhat & Ors. ... Appellant(s) Through: Mr. J. H. Reshi Advocate. Union Territory of J&K &Ors. …Respondent(s) Through: Mr. N. H. Shah Sr. AAG with Mr. Shah Aamir AAG. HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Per Thakur ‘J’ The present Letters Patent Appeal has been preferred against the judgment and order dated 30th of December 2019 whereby interim direction dated 16.10.2018 has been modified. The Writ Court had earlier vide order dated 16.10.2018 while issuing notice in the writ petition stayed the acquisition proceedings initiated vide Notification No.11 of 2016 dated 30.08.2019 for construction of the All India Medical Institute at Awantipora. Counsel for the appellants urged that the judgment and order impugned was passed without hearing the appellants. It was stated that 2 LPA No.21 2020 the writ petition was listed on 30th of December 2019 but the Bench collapsed due to non availability of the Hon’ble Judge due to some unavoidable circumstances. It was urged that the Registrar Judicial of the Srinagar Wing of the High Court accordingly on the same day i.e. 30.12.2019 notified that the cases would not be taken up by the said Bench. It was stated that the counsel for the petitioners appellants on coming to know that the Hon’ble Judge would not be holding the Court was under a bona fide belief that the cases would be adjourned in the normal course and therefore was not personally present when the case was taken up by a Coordinate Bench upon a request having been made by the Counsel for the respondents on the same date i.e. 30th of December 2019. It was urged by the learned counsel for the petitioners that the petitioners were entitled to a detailed hearing inasmuch as the petitioners had challenged the process of acquisition initiated by the respondents which was otherwise illegal and contrary to the provisions of Land Acquisition Act. On a perusal of the cause list as also notice dated 30th December 2019 issued by Registrar Judicial of the Srinagar wing of the High Court it can be seen that the cases listed before the Court on 30th of December 2019 on account of non availability of the Hon’ble Judge could be mentioned before the Coordinate Bench. It appears that the counsel for the respondents made a mention before the Coordinate Bench to take up the matter which was otherwise 3 LPA No.21 2020 listed in the regular cause list and the matter was taken in absence of counsel for the petitioners and the interim order dated 16.10.2018 modified on the same date i.e. 30.12.2019. It was urged that the Writ Court could not have modified the order issued on 16.10.2018 without giving notice to the opposite party. It was urged that the order impugned was in violation of Order 39 Rule 4 of the Code of Civil Procedure. For facility of reference Order 39 Rule 4 is reproduced herein below: “4. Order for injunction may be discharged varied or set aside.—Any order for an injunction may be discharged or varied or set aside by the Court on application made thereto by any party dissatisfied with such order: Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party the Court shall vacate the injunction unless for reasons to be recorded it considers that it is not necessary so to do in the interest of justice: Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard the order shall not be discharged varied or set aside on the application of that party except where such discharge variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardships to that party.” A lot of emphasis was laid by the counsel for the respondents that the entire process of acquisition had since been completed before the filing of the writ petition and therefore according to latest Apex Court judgments the Courts would not interfere in the acquisition matters which had attained finality by passing of the award as also by delivery of possession. It was therefore urged that notwithstanding the 4 LPA No.21 2020 fact that the counsel for the petitioners was not present the outcome of the writ petition would however remain unchanged. 7) We have heard learned counsel for the parties. The issue that arises for consideration is as to whether counsel for the appellants had sufficient notice in terms of provisions of Order 39 Rule 4 of CPC before the Writ Court could modify the order dated Admittedly the matter was listed in the cause list on 30th of December 2019 which has to be read with the notice issued by the Registrar Judicial on the same date informing the petitioners appellants that the matter could be mentioned before the Coordinate Bench for being taken up. The counsel for the appellants therefore knew well that the matter could have been taken up by the Bench which was available as was notified in the notice of the Registrar Judicial. In our opinion counsel for the appellants therefore must be deemed to have sufficient notice of the listing of the case and the hearing therein especially in view of the fact that the objections had been filed by the respondents to the writ petition. In our opinion there was sufficient compliance with the requirements of Order 39 Rule 4 CPC in the present case. 10) The second issued that requires consideration is whether the Writ Court was justified in exercising its power to modify the order earlier granted on 16.10.2018 or not. 5 LPA No.21 2020 11) Admittedly by virtue of order dated 16.10.2018 the Writ Court while issuing notice in the writ petition filed by the appellants had stayed the acquisition proceedings initiated by respondents for construction of All India Medical Institute at Awantipora. Considering the importance of the purpose for which the acquisition was being initiated the Writ Court deemed it appropriate to vacate the order. We are told that the acquisition proceedings stood concluded and the final award passed. Not only this even the possession had been taken over by the Medical Education Department. If that be so in our opinion there was enough justification for the Writ Court to modify the order. 12) For whatever has been stated above we find no merit in the present appeal which is accordingly dismissed. THAKUR) JUDGE (DHIRAJ JUDGE “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No |
Election result made without the counting of votes, opposing relevant Rules and Instructions cannot be sustained: Patna High Court | If the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained 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 Santosh Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 237 of 2022) Brief facts of the case are that petitioners have asked for the issuance of a MANDAMUS writ compelling and instructing the Respondent State Election Commission to call for the C.C. TV footage of election. Footage relating to the counting of votes in Gram Panchayat Raj Jagdishpur Dharmu, Nirvachan Constituency for the post of Ward Member and Mukhiya of Gram Panchayat Raj Jagdishpur Dharmu from the respondent and pass necessary orders in exercise of its power under Section 123 of the Bihar Panchayat Raj Act, 2006, if after C.C. TV’s scrutiny of counting video footage found the fact that no counting took place in the constituency in the presence of the candidates or their Counting Agents, including the petitioner, the election result was declared and a certificate of election was issued in favour of a candidate contesting the election. Petitioners have prayed for a declaration that, if the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained. Petitioners have further asked for the issuance of an appropriate writ in the form of MANDAMUS, requiring and instructing the Respondent State Election Commission to annul the election in the above-mentioned constituency if the C.C. TV investigation finds that the election based on footage of the counting process, it was discovered that no votes were counted in the above-mentioned Constituency in the presence of the candidates or their Counting Agents, particularly petitioner, and that a new election should be held in accordance with the law, but only after appropriate amendments to the Bihar Panchayat Election Rules, 2006 were made regarding the appointment of a sufficient number of Counting Agents to keep watch over the counting process proportionate to the Counting Tab. After scrutiny by C.C. TV, petitioners have requested that action be taken against the erring officers tasked with the responsibility of counting the votes in constituency. It has come to light that the election result was declared without counting of votes in the presence of the candidates or their Counting Agents, particularly petitioner , in violation of the provisions of the Bihar Panchayat Election Rules, 2006, and the detailed instructions issued by the State” Election Commission through its Hand Book for Instructions Regarding Counting, 2021, soft copy of which was sent to all the District Election Officers (Panchayat) -cum- District Magistrate. Learned counsel for the petitioner’s states that the petitioners will be satisfied if a direction is issued to the authority concerned, i.e., respondent no.4, The State Election Commissioner, the State Election Commission (Panchayat), Patna, or any other statutory authority, to consider and decide the representation that the petitioners will be filing within four weeks from today for redress of the grievance. According to learned counsel for the respondents, if the petitioners file such a representation, the authority concerned must consider and dispose of it promptly, preferably within four months of its filing, along with a copy of this ruling. The petition and Interlocutory Application stands dismissed and since the court did not reach a decision on the merits, all issues are unresolved. When a petitioner seeks such remedies as are ordinarily available in law before the appropriate venue, the matter will be handled in conformity with the law and in a timely manner. The authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within four months of the date of its filing, along with a copy of this order, and while considering such representation, natural justice principles shall be followed and the parties shall be afforded due opportunity of hearing. Click here to read the judgment | IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2322 Santosh Kumar S o Rajeshwar Prasad Singh Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District Jaganath Paswan S o Bunilal Paswan Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District Rekha Devi W o Amrendra Kumar Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District ... Petitioner s The State of Bihar Through the Chief Secretary Government of Bihar The Additional Chief Secretary Panchayati Department Government of Bihar Patna The State Election Commission 3rd Floor Sone Bhawan Birchand Patel Path Patna through the State Election Commissioner The State Election Commissioner The State Election Commission Panchayat) 3rd Floor Sone Bhawan Birchand Patel Path Patna The Secretary The State Election Commission3rd Floor Sone Bhawan Birchand Patel Path Patna The District Magistrate cum District Election Officer Date : 13 01 2022 Heard learned counsel for the parties Patna High Court CWJC No.2322 dt.13 01 2022 Petitioners have prayed for the following relief(s): Patna High Court CWJC No.2322 dt.13 01 2022 Patna High Court CWJC No.2322 dt.13 01 2022 After the matter was heard for some time learned counsel for the petitioners under instructions states that Patna High Court CWJC No.2322 dt.13 01 2022 petitioners shall be content if a direction is issued to the authority concerned i.e. respondent no.4 The State Election Commissioner the State Election Commission3rd Floor Sone Bhawan Birchand Patel Path Patna or any of the statutory authority to consider and decide the representation which the petitioners 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 petitioners the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four 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) Petitioners 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 four months from the Patna High Court CWJC No.2322 dt.13 01 2022 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 d) Equally liberty is reserved to the petitioners to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioners take 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 petitioners to approach the Court if the need so arises subsequently on the same and subsequent cause of action g) Liberty also reserved to the petitioners 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 Patna High Court CWJC No.2322 dt.13 01 2022 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 The petition stands disposed of in the aforesaid Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J |
The father of the petitioner is responsible for the crime, as he coerced the informant’s husband to commit an illegal activity which resulted in his death.: High court of Patna | The petitioner was arrested under Sections 188 IPC, “Disobedience to order duly promulgated by a public servant”, section 269, “Negligent act likely to spread infection of disease dangerous to life”, section 270, “Malignant act likely to spread infection of disease dangerous to life”, section 302, “Punishment for murder”, section 34 of the Indian Penal Code, “Acts done by several persons in furtherance of common intention” and section 3 of the Epidemic Diseases Act, 1897, “Penalty for any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 IPC.” This present petition is in connection with Tetarhat PS Case No. 41 of 2020 dated 21.04.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 21st August 2021 in the case of Chotu Kumar @ Abhishek Raj, Versus the State of Bihar, [Criminal Miscellaneous No. 27530 of 2021] Mr Mayank Bilochan represented as the advocate for the petitioner, and Mr Satyendra Prasad represented the state of Bihar as the additional Public Prosecutor, and Mr Bhim Sen Prasad represented as the Advocate for the informant, the proceedings of the court were held via video conference. The following are the facts of the case, the allegations against the petitioner are that the petitioner and his father visited the house of the deceased at night and persuaded him to go for sand lifting from the tractor belonging to the father of the petitioner and the husband of the informant who is the victim and deceased was crushed to death. The counsel representing the petitioner held that this is a false implication as the petitioner is the only son of the owner of the tractor and he is also a student and has no connection with this incident. Further, the petitioner has no other criminal antecedent and even during the investigation there is no evidence against the petitioner submitted by the police and the father was solely responsible for the death of the informant’s husband and also confessed before the court while he was in judicial custody. Further, the counsel held that it is only the informant and her friends who support the prosecution story and there is no independent witness. The additional public prosecutor held that the petitioner must not be given bail as he is equally responsible for the crime and he forced the husband of the informant to indulge in the illegal loading of sand from the tractor. The counsel representing the informant held that the petitioner also came along with his father and entered the house of the deceased and forced the deceased for some illegal sand loading, therefore the petitioner was equally responsible for committing the crime which resulted in the death of the informant’s husband as he was used for illegal purposes and this is another reason as to why it took place during the night and various witness has also supported the prosecution case. However, it is not controverted that the petitioner came along only after the father called him. After considering the facts and circumstances of the case the court held that basically, it is the father of the petitioner who is responsible for the incident, as he was driving the tractor and was also the owner of the same and the husband of the informant was held to have been forced to go for loading the sand on the tractor at night, which has resulted in his death. Therefore the Court is persuaded to allow the prayer for pre-arrest bail. | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 275321 Arising Out of PS. Case No. 41 Year 2020 Thana TETERHAT District Lakhisarai Chhotu Kumar @ Abhishek Raj aged about 19 years Son of Ashok Ram Resident of Village Mahisona PS Tetarhat District Lakhisarai The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Mayank Bilochan Advocate For the State Mr. Satyendra Prasad APP For the Informant Mr. Bhim Sen Prasad Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 21 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 09.08.2021 which was allowed 3. Heard Mr. Mayank Bilochan learned counsel for the petitioner Mr. Satyendra Prasad learned Additional Public Prosecutorfor the State and Mr. Bhim Sen Prasad learned counsel for the informant. Patna High Court CR. MISC. No.275321 dt.21 08 2021 4. The petitioner apprehends arrest in connection with Tetarhat PS Case No. 41 of 2020 dated 21.04.2020 instituted under Sections 188 269 270 302 34 of the Indian Penal Code and 3 of the Epidemic Diseases Act 1897 5. The allegation against the petitioner is that he and his father had gone to the house of the deceased at night and had coerced him to go for lifting sand at night and thereafter from the tractor of the father of the petitioner the husband of the informant was crushed leading to his death 6. Learned counsel for the petitioner submitted that he has been implicated only because he is the son of the person who owned the tractor. It was submitted that he is a student and has nothing to do in the entire episode. It was submitted that the petitioner has no criminal antecedent. Learned counsel submitted that during investigation nothing has come against the petitioner and final form has been submitted by the police not sending him up for trial in which it has been stated that the father of the petitioner who was also the owner and driver of the tractor was responsible for the death of the husband of the informant and he had surrendered before the Court below and was in judicial custody. Learned counsel submitted that chargesheet has been submitted under Sections 279 337 and 304 of the Indian Penal Patna High Court CR. MISC. No.275321 dt.21 08 2021 Code against the father of the petitioner. It was further submitted that it is only the informant and persons close to him and close relatives who have supported the prosecution story and no independent witness has supported it 7. Learned APP submitted that the petitioner was equally responsible for having forced the husband of the informant to go for illegal loading of sand on the tractor belonging to his father 8. Learned counsel for the informant submitted that the petitioner had also come with his father to the house of the deceased and had forced him to go with them for the purpose of loading sand illegally. Thus it was submitted that the petitioner was equally responsible for having forced the husband of the informant to commit such crime which has resulted in death as he was crushed by the tractor. Learned counsel submitted that there is admission on the part of the petitioner that the tractor owned by his father was being used for illegal sand mining and thus from the circumstances it is also obvious that the petitioner accompanied his father to the house of the deceased compelling him to come and get his tractor loaded with sand which was illegal and that is why it was being done at night. Learned counsel submitted that the Court has taken cognizance under Section 302 Patna High Court CR. MISC. No.275321 dt.21 08 2021 of the Indian Penal Code as also the witnesses have supported the prosecution case. However it was not controverted that the only allegation against the petitioner is that he had also come with his father to the house of the deceased for calling him 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that basically it is the father of the petitioner who is responsible for the incident as he was driving the tractor and was also the owner of the same and the husband of the informant appears to have been forced to go for loading the sand on the tractor at night since it was being illegally done which has resulted in the accident for which there are chances that the petitioner just because he was son of co accused Ashok Ram has also been implicated. Thus taking an overall view in the matter the Court is persuaded to allow the prayer for pre arrest bail 10. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Lakhisarai in Tetarhat PS Case No. 41 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Patna High Court CR. MISC. No.275321 dt.21 08 2021 Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner that the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses and that the petitioner shall cooperate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to cooperate shall lead to cancellation of his bail bonds. 11. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 12. The petition stands disposed of in the (Ahsanuddin Amanullah J |
Quashing of a complaint should be an exception than an ordinary rule: Supreme Court | The law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. It was held by the decision of the privy council in case of King Emperor vs. Khwaja Nazir Ahmed, AIR 1945 PC 18 was reiterated in the case of Skoda Auto Volkswagen India Private Limited vs The State of Uttar Pradesh &ors., SLP (CRIMINAL) NO.4931 OF 2020 by the bench comprising of Chief Justice S.A.Bobde, Justice A.S. Bopanna and Justice V.Ramasubramanian. The facts of the case are, here the petitioner is a Companyheadquartered in Pune and is engaged in the business of manufacture, import and sale of passenger vehicles in India. The Automotive Research Association of India, which is a research institution of the automotive industry attached to the Ministry of Heavy Industries and Public Enterprises of the Government of India issued a notice dated 04.11.2015 to the Managing Directors of Skoda Auto India Private Limited, Volkswagen India Private Limited and Volkswagen Group Sales India Private Limited, calling upon them to show cause as to why they should not come to the conclusion that the vehicles manufactured and sold by them in India, are in violation of the requirements of the Central Motor Vehicles Rules, as the vehicles manufactured by Volkswagen, when tested on road, indicate 39 times more NOx pollution compared with the tests carried out in the laboratory. At about the same time, two original applications came to be filed before the National Green Tribunal,Principal Bench. The NGT recorded a prima facie finding that the claim of the manufacturers that they had not caused any damage to the environment, was not acceptable and was directed the manufacturers to deposit Rs. 100 crores with the CPCB. Later, one of the respondent filed a Criminal Miscellaneous Writ Petition No.9233 of 2020 before the High Court of Judicature at Allahabad. In the said Writ Petition, the petitioners sought quashing of the FIR. However, Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. Aggrieved by the refusal of the High Court to quash a First Information Report) registered against them for the offences punishable under Sections 34, 471, 468, 467, 420, 419 and 406 IPC, the petitioner has come up with the above Special Leave Petition. The first contention revolves around the pendency of the Civil Appeals arising out of the order of the NGT and the interim order passed by this Court in the Civil Appeals. The order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot be taken as an impediment for an individual who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers. Thus, the respondents can file a case. The Supreme Court while concluding on whether FIR can be quashed or not, it was held that, “In State of Haryana vs. Bhajan Lal, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.” | IN THE SUPEME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITIONNO.4931 OF 2020 SKODA AUTO VOLKSWAGEN INDIA PRIVATE LIMITED … PETITIONER(S THE STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S JUDGMENT V. Ramasubramanian J Aggrieved by the refusal of the High Court to quash a First Information Reportregistered against them for the offences punishable under Sections 34 471 468 467 420 419 and 406 IPC the petitioner has come up with the above Special 2. We have heard Dr. Abhishek Manu Singhvi learned senior counsel appearing for the petitioner. Mr. Maninder Singh learned Signature Not Verified senior counsel appears for the 3rd Respondent who is the de facto Digitally signed by The petitioner is a Company headquartered in Pune and is engaged in the business of manufacture import and sale of passenger vehicles in India. It is claimed that the petitioner has been formed by the amalgamation of three Companies by name Skoda Auto India Private Limited Volkswagen India Private Limited and Volkswagen Group Sales India Private Limited. The petitioner claims that they are responsible for the business operations of five automobile brands namely Skoda Volkswagen Audi Porsche and The Automotive Research Association of India which is a research institution of the automotive industry attached to the Ministry of Heavy Industries and Public Enterprises of the Government of India issued a notice dated 04.11.2015 to the Managing Directors of Skoda Auto India Private Limited Volkswagen India Private Limited and Volkswagen Group Sales India Private Limited calling upon them to show cause as to why they should not come to the conclusion that the vehicles manufactured and sold by them in India are in violation of the requirements of the Central Motor Vehicles Rules. It was alleged in the said notice that the study carried out by them on limited vehicle models fitted with Diesel EA 189 Engines led them to believe that the vehicles manufactured by Volkswagen when tested on road indicate 3 9 times more NOx pollution compared with the tests carried out in the laboratory on Modified Indian Driving Cycle MIDC). It was also alleged in the said notice that they had reason to believe that Diesel EA 189 Engines fitted in BS IV vehicles are equipped with what are called ‘defeat devices’ At about the same time two original applications came to be filed before the National Green TribunalPrincipal Bench. Both the applications were primarily against Skoda Auto India Private Limited Volkswagen India Private Limited and Volkswagen Group Sales India Private Limited. Apart from these three companies the Union of India the Central Pollution Control Boardand a few others were also made parties to the original applications The particulars of these original applications are presented in a tabular column for easy appreciation: Name of the Names of Respondents Union of India through its Secretary Ministry of Heavy Industries & Public 2.Ministry of Environment Forest and Climate Change Control Board Through 4. Volkswagen India Pvt Through 5.Skoda Auto Private Limited Through its Managing Director 6. Volkswagen Group India Private Sales Limited Through its Volkswagen AG Through Chairman of 2. Volkswagen Group Sales India Private Limited Maharashtra Respondents 1 3 to assembly and sale of of Respondents 4 6 in India established that they are not employing any devices or To direct the Respondents 1 3 to inspect and check all manufactured and sold in India to ensure that no deceit devices are 3.To direct respondents 4 7 to stop production assembly and sale of those vehicles and 4. To direct respondents 4 7 to rectify the engines of vehicles already sold in India at Respondents 1 6 from selling any further automobile with the defeat device which violated the applicable emission norms Mr. Satvinder 1. Volkswagen Vellore Deepit Respondents 106 to disgorge all the profits made by selling with cheat devices from the year 2008 and Respondents 1 6 to pay damages 4. Skoda Auto India Limited Maharashtra 5. Skoda Auto AS Czech 6. Dr.Ing. h.e.F.Porsche AG Germany Control Board Delhi 8. Automotive Research Association of India 9. Union of Through Ministry of Heavy Industries and Public Enterprises of Territory of India Pollution Control Committee Delhi On 16.11.2018 the NGT recorded a prima facie finding that the claim of the manufacturers that they had not caused any damage to the environment was not acceptable. The Tribunal constituted a joint team to give an expert opinion and in the mean time directed the manufacturers to deposit Rs. 100 crores with the The manufacturers filed appeals before this Court in C.A. Nos 11928 and 119218 against the preliminary finding and the interim direction issued by the NGT. During the pendency of those appeals the Expert Team filed a Report Therefore this Court disposed of the aforesaid Civil Appeals giving liberty to the manufacturers to file objections to the Report of the Expert Team and directed the Tribunal to consider those objections and to pass orders 10. Pursuant to the said order of this Court the NGT allowed the manufacturers to file objections and heard both the original applications and disposed of the same by order dated 07.03.2019 Some of the findings and directions by the Tribunal were: That the manufacturers had in fact used cheat devices to suppress the laboratory tests That NOx emission was higher by Portable Emission Measurement Systemiii) That Volkswagen vehicles gave much less NOx emission under the Warm Test Cycles after recall That the emissions measured on PEMS were higher than BS IV limit That the manufacturers are liable to pay damages to the tune of Rs.500 crores and vi) That the CPCB shall consider initiation of prosecution in the light of applicable statutory 11. Challenging the said order dated 07.03.2019 of the NGT two Civil Appeals were filed in C.A.Nos. 4069 and 4086 of 2019. On 06.05.2019 these appeals were taken up along with another Civil Appeal filed by the Inter Continental Association of lawyers and this court ordered the issue of notice in the appeals. In the mean time this Court directed that no coercive steps shall be taken against Volkswagen India Private Limited 12. While things stand thus the 3rd Respondent herein lodged a complaint with the S.H.O. Gautam Budh Nagar on 10.07.2020 alleging that he had bought 7 Audi Brand cars from the authorised dealers of the manufacturing Companies that at the time of purchase he got it clarified from the Company that they had not installed any cheat devices in the vehicles sold in India that however the authorities in India found out a higher emission of NOx that even the NGT imposed a fine that the complainant thereafter realised that he had been duped by the Company that knowing fully well that their vehicles have been installed with cheat devices the manufacturer had prepared wrong records and documents that the manufacturers and the officers of the manufacturers are therefore guilty of various offences under the IPC and that therefore action should be initiated against them 13. Contending that as per the particulars mentioned in the VAHAN Portal of the Government the 3rd Respondent herein had purchased only 3 and not 7 vehicles that the complaint lodged by the 3rd Respondent after more than 2½ years of the purchase of the vehicles was malicious and full of false particulars and that the FIR is based entirely upon the order of the NGT which is the subject matter of two civil appeals before this Court the petitioner filed a Criminal Miscellaneous Writ Petition No.92320 before the High Court of Judicature at Allahabad. In the said Writ Petition the petitioners sought quashing of the FIR 14. By an order dated 01.10.2020 the Allahabad High Court rejected the prayer for quashing of the FIR. However the High Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. subject however to the condition that they shall cooperate in the investigation and also appear as and when called upon to assist in 15. Not satisfied with a mere protection against arrest and the refusal of the Allahabad High Court to quash the FIR the petitioner has come up with the above SLP 16. The main contentions of the petitioner are: That the Police cannot investigate an issue the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT and That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and also the fact that the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles 17. Let us take up the second contention first since it is capable of being dealt with without much ado. The second contention has two parts namely that there is a long delay in lodging the complaint andthat the 3rd Respondent complainant appears to have purchased only 3 vehicles as against his claim to have purchased 7 vehicles 18. The question whether the 3rd Respondent complainant purchased 3 vehicles as revealed by the VAHAN Portal of the Government or 7 vehicles as claimed by him in his complaint is a question of fact which has to be established only in the course of investigation trial. In a petition for quashing the FIR the Court cannot go into disputed questions of fact 19. The mere delay on the part of the 3rd Respondent complainant in lodging the complaint cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents. Therefore the second ground on which the petitioner seeks to quash the FIR cannot be countenanced 20. The first contention revolves around the pendency of the Civil Appeals arising out of the order of the NGT and the interim order passed by this Court in the Civil Appeals 21. As stated earlier two original applications came to be filed before the NGT in the year 2015 alleging that the manufacturers of the vehicles in question were employing deceit devices. The filing of the original applications coincided with the issue of notice by the Automotive Research Association of India to the manufacturers We have already indicated broadly in paragraphs 5 10 above as to what transpired before the NGT 22. The applicants before the NGT did not seek any relief for themselves as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. This is why the NGT by its final order dated 07.03.2019 directed only the CPCB to consider the initiation of prosecution in the light of the applicable statutory regime while ordering the manufacturers to deposit Rs.500 crores as compensation for the damage caused to the 23. Therefore the order of the NGT passed on the applications filed by certain individuals not claiming as purchasers of vehicles cannot be taken as an impediment for an individual who purchased cars from the manufacturers to lodge a complaint if he has actually suffered on account of any representation made by the 24. The interim order passed by this Court on 06.05.2019 in Civil Appeal Nos. 4069 and 40819 while issuing notice reads as “In the meantime no coercive steps shall be taken against the appellant viz. Volkswagen India Private 25. The aforesaid interim order correlates only to the directions issued by the NGT in paragraphs 29 30 and 32 of its order dated 07.03.2019. The direction contained in Paragraph 30 of the order of the NGT dated 07.03.2019 reads as follows: “We leave it open to the CPCB to consider initiation of prosecution in the light of applicable statutory regime.” In paragraphs 29 and 32 of its order the NGT directed the manufacturers to deposit compensation to the tune of Rs.500 crores within 2 months 27. Therefore the interim order passed by this Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals. Hence it is futile to contend that the pendency of the Civil Appeals and the interim order passed by this Court should be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation 28. Dr. A.M. Singhvi learned senior counsel appearing for the petitioner strenuously contended that the contents of the complaint lodged by the 3rd Respondent complainant with the Police were nothing but a reproduction of the contentions made before the NGT and that actually the substratum of the police complaint is what is sub judice before this court. Therefore he contends that the police cannot investigate into the same set of allegations which form the subject matter of proceedings pending adjudication before this 29. But we do not think so. A little elaboration is required to show why we cannot agree with the above contention of the learned senior counsel appearing for the petitioner. 30. Section 110(1) of the Motor Vehicles Act 1988 empowers the Central Government to make rules regulating the construction equipment and maintenance of motor vehicles with respect to all or any of the matters enumerated in Clausestoof Sub sectionof Section 110 relates to “the emission of smoke visible vapour sparks ashes grit or oil” In exercise of powers conferred by Section 110(1) the Central Government issued a set of rules known as The Central Motor Vehicles Rules 1989 32. Rules 112 to 114 of those Rules deal in general with “smoke vapour spark ashes grit and oil”. Rules 115 and 116 deal specifically with “emissions of smoke vapour” etc. from motor vehicles and “test for smoke emission level and Carbon Monoxide CO) level for motor vehicles”. These Rules correspond to Clauseof Section 110 33. Rule 126 mandates every manufacturer or importer of motor vehicles other than trailers and semi trailers to submit the prototype of the vehicle manufactured or imported by him for testing by the agencies indicated therein. Rule 126A enables the testing agencies referred to in Rule 126 to conduct tests on the vehicles drawn from the production line of the manufacturer to verify whether these vehicles conform to the provisions of the Rules In order to give effect to the mandate of the statutory prescription the Ministry of Road Transport and Highways issued a document bearing No. MoRTH CMV TAP 116 116 Issue No.4 which prescribes the test method testing equipment and other related procedure for the purpose of testing vehicles for verifying compliance with Rules 115 and 126A of the Rules for “Type Approval and Conformity of Production”. The document also contains the total procedure for checking of the in service vehicles for idling CO HC for vehicles fitted with petrol CNG LPG Engines This document is divided into 15 parts. Part XIV contains the details of standards for Tailpipe Emissions from vehicles and Test Procedures Effective for Mass Emission Standards 35. Clause No.2.27 of Chapter 1 Part XIV of the aforesaid document defines what is called a “Defeat Device”. It reads as “Defeat Device means any element of design which senses temperature vehicle speed engine rotational speed transmission gear manifold vacuum or any other parameter for the purpose of activating modelling delaying or deactivating the operation of any part of the emission control system that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use. Such an element of design may not be considered a defeat device if 1. The need of the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle or 2. The device does not function beyond the requirements of engine starting or 3. Conditions are substantially included in the Type I or Type VI test procedure.” 36. The allegations in the complaint lodged by the 3rd respondent herein are to the following effect i) that “at the time of purchase and taking delivery of the vehicles the complainant got clarified from the accused persons whether the vehicles in India were also fitted with cheat devices” ii) that despite the clarification issued by them that they had not installed any cheat devices in the vehicles meant to be sold in India the cars purchased by the complainant were found to contain such defeat devices and various offences. iii) that therefore the manufacturer is guilty of commission of 37. The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner are all questions of fact peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3 rd respondent or that there was norevealed similar results in the United States. In September 2015 allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union States. After claims were lodged and legal action initiated the German Federal Motor Transport Authority appears to have given permission in June 2016 for the recall of about 2 million vehicles across Europe. In the light of these developments one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December 2016 giving certain options to the customers. These and the subsequent developments which attained notoriety as the diesel gate scandal led to the German Federal Court of Justice Bundesgerichtshof BGH) giving a ruling on May 25 2020 in favour of the car owners for damages It is in the backdrop of what transpired in Europe and U.S.A. during the period from 2015 to 2019 that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019 have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals such as i) whether any emissions manipulation software called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by certain individuals and whether any representation was made to the purchasers of the cars in which such devices had been installed about the emission efficiency level of the cars 40. Therefore we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact the High Court has been fair to the petitioner by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do not think that the petitioner can ask for anything more. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed1 the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal2 the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint the quashing of which is sought the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat3 this Court again 1 AIR 1945 PC 18 2 Supp.SCC 335 3 7 SCC 659 cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Dattathis Court held that if a perusal of the first information report leads to disclosure of an offence even broadly law courts are barred from usurping the jurisdiction of the police since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the 42. In view of what is stated above the special leave petition is dismissed. There will be no order as to costs November 26 2020 |
A Government employee should strictly follow the Government guidelines for medical reimbursement bills: High Court of Tripura. | A person who is a government employee is only liable to claim medical reimbursement bills when such person has followed the government guidelines for medical reimbursement bills. A single Judge bench comprising Hon’ble Justice Mr. Arindam Lodhi, in the matter of Sri Pradip Datta Vs. The State Tripura (WP(C) 234 OF 2021), dealt with an issue where the petitioner had filed this petition as such application for medical reimbursement was rejected by the respondents – State. In the present case, the petitioner’s daughter was suffering from illness and was under treatment of Dr. J. L. Roy, Agartala, Tripura. The petitioner also visited Hyderabad twice for better treatment of his daughter. During the second visit to Hyderabad, the petitioner’s wife fell ill, and on examination by doctors of the Asian Institute of Nephrology and Urology (for short, AINU), and kidney stone was detected. Thereby petitioner’s wife was operated and the petitioner submitted bills for medical reimbursement as he was eligible for such reimbursement of medical bills. The bill was rejected by the state- respondent stating that the petitioner went to Hyderabad and treated his wife at AINU without any referral certificate from the recognized standing Medical Board constituted by the Govt. of Tripura. The counsel for the petitioner submitted that due to an emergent situation, the petitioner could not obtain a referral certificate from the Medical Board. To this, the counsel for the respondents submitted that the petitioner did not treat his wife in an emergent situation. The counsel also submitted that the discharge summary reveals that the petitioner undertook many medical tests of his wife and ultimately stone was detected at her kidney it was mentioned in the report that the petitioner’s wife had pain in right loin on and off since 8 years associated with occasional LUTS. Further, the counsel for the petitioner had referred to 2 more judgments passed by the court, but the court did not find it relevant to the facts of the present case. The court observed that the treatment was not done in an emergent situation. Further, the court observed that- “since the wife of the petitioner had been suffering from this illness for about 8 years and for the last 3 months before his visiting to Hyderabad there was pain off and on at her abdomen, she could have easily contacted with the Doctors of the Government Hospitals at Agartala for her treatment.” Further, the court observed that the petitioner as a government employee should follow the Government guidelines for medical reimbursement bills. Thereby the court dismissed the writ petition. | HIGH COURT OF TRIPURA WP(C) 234 OF 2021 Sri Pradip Datta S O Late Manindra Chandra Datta Vill Chhanban P.O. Rajarbag Udaipur Gomati District Pin 799120. 1) The state of Tripura Represented by the Secretary cum Commissioner Education Department Government of Tripura New Secretariat Complex P.O.Kunjaban P.S. New Capital Complex Agartala West Tripura. 2) The Director of Secondary Education Government of Tripura P.O. Agartala West Tripura Pin 799001. 3) The District Education Officer Udaipur Gomati District Tripura. 4) The State of Tripura Represented by the Commissioner cum Secretary to the Govt. of Tripura Finance Department New Capital Complex P.O. Kunjaban Agartala District West Tripura. HON’BLE MR.JUSTICE ARINDAM LODH For the petitionerMr. A. Acharjee Advocate. For the respondentHeard Mr. A. Acharjee learned counsel appearing for the petitioner. Also heard Mr. A.K.Deb learned panel counsel appearing for the State respondents. This is a case filed by the petitioner being his application for medical reimbursement was rejected by the State respondents. It is the case of the petitioner that his daughter was suffering from illness and she was under treatment of Dr. J. L. Roy Agartala Tripura. The petitioner had paid visit to Hyderabad for better treatment of his daughter. For two occasions the petitioner went to Hyderabad for the treatment of his daughter. During those two occasions the said daughter was escorted by the petitioner as well as his wife. During second visit the wife of the petitioner fell ill and on being examined by the Doctors of Asian Institute of Nephrology and Urologyin her kidney stone was detected. The wife of the petitioner Smt. Lipika Das Datta underwent surgery there and removed the stone. After returning from Hyderabad the petitioner submitted bills for medical reimbursement as he was eligible for such reimbursement of medical bills for the treatment of his wife. The said bills were rejected by the State respondents on the ground that the petitioner went to Hyderabad and treated his wife at AINU without any referral certificate from the recognized standing Medical Board constituted by the Govt. of Tripura. Mr. Acharjee learned counsel for the petitioner has submitted that in an emergent situation the wife of the petitioner was operated by AINU doctors and for such emergent situation the petitioner could not obtain referral certificate from the Medical Board. On the other hand Mr. Deb learned panel counsel of the State respondent submits that the present case is not the case where the State respondents had rejected the claim for medical reimbursement on any technical ground. learned counsel has emphasized that the present case is not a case where the petitioner had treated his wife in an emergent situation. Mr. Deb learned counsel has drawn my attention to the Memo. dated 16.12.2019 sanctioning the leave of the petitioner by the competent authority wherein it transpires that the petitioner applied for leave “due to personal affairs” where I have noticed that there is specific option for applying “leave on medical ground”. I have also noticed the discharge summary of Mrs. Lipika Das Datta dated 24.12.2019 issued by AINU. The discharge summary reveals that the petitioner undertook so many medical tests of his wife and ultimately stone was detected at her kidney. Under the caption “COMPLAINT(s)” it is written that “right loin pain on and off since 8 years associated with occasional LUTS”. Under the head “HISTORY OF PRESENT ILLNESS” it is written that “Mrs. Lipika Das Datta presented with Right loin pain on and off since 8 years associated with occasional LUTS. History of aggravating same symptoms since 3 months. CT abdomen plain was shown which showed right renal calculus with mild pelviectasis and mesenteric lymphadenopathy. Patient admitted for further evaluation and management.” The said discharge summary further reveals that “patient was admitted and evaluated with appropriate investigations. After thorough pre operative evaluation and pre anaesthetic checkup patient was taken up for surgery. Right Retrograde Intrarenal Surgery with Lessor Lithotripsy + DJ stenting was done under general anaesthesia on Mr. Acharjee learned counsel for the petitioner has pressed into service as many as two judgments passed by this Court in WP(C) 1479 2017 titled as Uttam Pal Vrs. State of Tripura and in WP(C) No.895 2018 titled as Subal Das Vrs. State of Tripura. Having perused those judgments according to me those judgments do not have any relevance to consider the facts of the present In my opinion this is not a case where the petitioner had to treat and admit his wife Smt. Lipika Das Datta in an emergent situation. The exigency was not at that level that the petitioner could not obtain referral certificate from the standing Medical Board. According to me since the wife of the petitioner had been suffering from this illness for about 8 years and for the last 3 months before his visiting to Hyderabad there was pain off and on at her abdomen she could have easily contacted with the Doctors of the Government Hospitals at Agartala for her treatment. The Government instructions regarding reimbursement of petitioner as a Government employee should strictly follow Government guidelines for medical reimbursement bills. More so the petitioner could have applied for leave on medical ground but he applied for granting leave on personal affairs w.e.f. 17.12.2019 to 28.12.2019. Having viewed thus I do not find any error in rejecting the application for reimbursement of medical bills of the petitioner by the In the result the writ petition stands dismissed. However there shall be no order as to costs. |
Bhagwan Dass V/S State Of Haryana | “Factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement” The alleged are that the petitioner had joined the police department on 15.5.1983. He earned his due promotions. He was entitled to by brought on list ””D”” for further promotion of Sub-Inspector w.e.f. 11.12.1989. In this regard, his representations were rejected. The petitioner filed a Civil Writ Petition No. 12331 of 1998 seeking promotion as Sub-Inspector. When notice of motion was issued by this Court, the respondents promoted the petitioner as Sub-Inspector on 10.12.1998 with effect from 1991. The grievance of the petitioner is that within a short span of 10 months he had been served with three months notice for retiring him compulsorily at the age of 55 years and three months.It is contended that the order retiring him compulsorily is illegal because before issuing such an order, now show cause notice or opportunity of being heard had been given to the petitioner. He further asserted that once He has been promoted, the earlier confidential reports which are adverse would be washed away and cannot be taken into consideration.Lastly, according to the petitioner, he could only be retired by the Director General of Police with the previous approval of the State Government and that has not been done and, therefore, the order is illegal. Hence, the present petition. PROCEDURAL HISTORY:In the written statement filed, the petition as such has been contested. It is not in dispute that the petitioner earlier filed a writ petition, referred to above. While reply to the said writ petition was being prepared and examined, he was promoted as officiating Sub-Inspector i.e. 9.8.1991. Subsequently, he was not found fit for retention in government service. He had earned adverse reports from 22.4.1994 to 7.11.1994. The integrity of the petitioner was reported to be doubtful. Therefore, he was retired compulsorily. The reason is that at the time of his earlier promotion, record only up to the year 1990 was considered and, therefore, he was promoted.It is denied that only the Director General of Police with the approval of the State Government could retire the petitioner. According to the respondents, the petitioner had 25 years qualifying service and, therefore, he could be retired. ISSUE BEFORE THE COURT:Whether the writ petition is maintainable? RATIO OF THE COURT:The court held that this adverse report could legitimately be taken into consideration for forming an opinion that the petitioner was not fit to be retained in service or that his retention was not in public interest/interests of service. His officiating promotion on 11.2.1980 as Sub-Inspector cannot have the effect of washing out the adverse reports because the assessment of the record of an employee at the 5 stage of promotion is substantially different from the assessment made for his retention in service after attaining a particular age or specified length of service. In the former case record of a limited period is considered but in the latter case overall record of service is required to be taken into account with greater emphasis on the record of previous 10 years. The court also held that Moreover, factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement.The court held that in this case sufficient material was available with the competent authority to form an opinion that the retention of the respondent No. 1 in service was not in public interest and in view of the principles of law laid down in Sh. Baikuntha Nath Das and another v. Chief District Medical Officers, Bari-pada and another 1992(2) SLR 2 we do not find any legal justification to hold that the premature retirement of the petitioner is arbitrary or otherwise unjustified.The court held that it is abundantly clear from the aforesaid that mere promotion by itself will not wash away the adverse entries. As one looks at the present controversy, the petitioner cannot take advantage of the said argument. This is for the reason that he was promoted as Sub-Inspector w.e.f. 1991.Hence, the court held that therefore, his confidential dossier for the earlier period was seen. His integrity was found to be doubtful in the subsequent years. Therefore, it is the subsequent entry which would prevail when the order in question is to be seen and the fact that he was promoted loses its sting and significance. Herein, copies of adverse entries against the petitioner have been appended as Annexure P-4 and Annexure P-5. DECISION HELD BY COURT:In this case the judgement was given by JUSTICE NAVATI that the allegation was that at the instigation of the parents and with the help of his brother Rajinder, the appellant had caused the death of his wife.The court stated that the opinion that the High Court committed a grave error in coming to the conclusion on the basis of such insufficient evidence that it was the appellant and appellant alone who caused the death of Shanno Devi. The court allowed this appeal, set aside his conviction under Section 302 I.P.C. and acquit him. Then appellant is on bail and, therefore, his bail bonds re-discharged. | BHAGWAN DASS AND OTHERS Vs STATE OF HARYANA & ORS DATE OF JUDGMENT31 07 1987 THAKKAR M.P.714 1987 SCC 634 JT 1987206 1987 SCALE The Respondent State has failed to establish its plea that the nature of the duties are different. In the regular cadre the essential qualification for appointment is B.A B.ED. Petitioners also possess the same qualification viz. B.A. B.ED. In fact many of them even possess higher degrees such as M.A. M.ED. In what manner and in what respect are the duties and functions discharged by those who are in the regular cadre different The petitioners having discharged the initial burden of showing similarity in this regard the burden is shifted on the Respondent State to establish that these are dissimilar in essence and in substance. We are unable to uphold the bare assertion made in this behalf by the State of Haryana in its Counter affidavit.So long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the stand point of ’Equal work for equal pay’ doctrine the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate select ed by a process whereat candidates from all parts of the country could have competed or whether they are elected by a process where candidates from only a cluster of a few vil lages could have competed is altogether irrelevant and immaterial for the purpose of the applicability of ’Equal work for equal pay’ doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of a few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to candidates from all over the country. But once he is select ed whether he is selected by one process or the other he cannot be denied equal pay for equal work without violating the said doctrine.Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of ’Equal pay for equal work’ is attracted.The petitioners have been appointed in the context of a Scheme which is by the very nature of things transient and temporary. No doubt it has been extended from year to year But by the very nature and scope of the scheme once the objective of Adult Education is accomplished in the sense that the illiterate adults of the cluster of villages become literate pursuant to the education imported at the centres the need for adult education would diminish progressively and ultimately cease. Having regard to these facts and circumstances we do not think that the Respondent State can be accused of making appointments on a temporary six months’ basis with any ulterior or oblique motive. In our opinion therefore the prayer of the petitioners to absorb them as regular employees on a permanent basis from the date of their initial appointment has no justification. That however does not mean that the petitioners should be deprived of the legitimate benefits of being fixed in a pay scale corre sponding to the one applicable to respondents 2 to 6 by treating them as employees who have continued from the date of initial appointment by disregarding the breaks which have been given on account of the peculiar nature of the Scheme While therefore the petitioners cannot claim as a matter of right to be absorbed as permanent and regular employees from the inception they would be justified in claiming pay on the basis of the length of service computed from the date of their appointment depending on the length of service by disregarding the breaks which have been given for a limited purpose. Having regard to the facts and circumstances of the present case ends of justice would be met if the petition ers are paid the difference in salaries with effect from the date of the institution of the Writ Petition viz. September 18 1985. But it will be convenient to direct the implemen tation with effect from September 1 1985.725B G 726A B ORIGINAL JURISDICTION: Writ Petition No. 123185 Under Article 32 of the Constitution of India Gobind Mukhoty and S.K. Bhattacharya for the Petitioners M.S. Gujral Madhu Sudan Rao I.S. Goel C.V. Subba Rao and Ms. Kitty Kumarmanglam for the Respondents The Judgment of the Court was delivered by THAKKAR J. The alleged violation of "Equal work equal pay" doctrine is the principal grievance of the petitioners The petitioners 102(1) in number holding the degrees of B.A. B.Ed. and M.A. B.Ed. were appointed as Supervisors by a competent selection committee constituted by the Education Department of Haryana from time to time since October 2 They have instituted the present petition under Art. 32 of the Constitution of India seeking appropriate reliefs in the context of two grievances one that the petitioners are given a deliberate break of one day after the lapse of every six months and have thus been treated as temporary Govern ment servants notwithstanding the fact that they have been continuously working eversince the dates of their respective appointment subject to the aforesaid break of one day at intervals of six months instead of absorbing them as regular employees in regular pay scales. And secondly though the petitioners performed their duties as Supervisors in the Education Department and do the same work as is being done by their counterparts respondents 2 to 6 who are discharg ing similar duties as Supervisors in the Education Depart ment who are absorbed as regular government servants they are paid less. The relief claimed by the petitioners is in the following terms: To declare by appropriate writ that the petitioners continue to be in the service of the respondents from the date of appointment irrespective of their being a deliberate break in service after every six months by the respondents in violation of Articles 14 and 16 of the Constitution of India 1. Originally there were 91 petitioners Subsequently 11 more were added as per the order of the Court dated September 18 1986 in Civil Misc. Petition Nos. 23014 and 25722 of 1986 718 To declare by appropriate writ or direction that the petitioners are in continu ous service since their respective date of appointments since the National Adult Educa tion Programme was introduced and further issue a writ in the nature of mandamus to the respondent that the petitioners are entitled to the benefit of notification dated 15 9 1982 issued by respondent State of Haryana and accordingly the petitioners be put on similar pay scales and service conditions as that of Masters in the State of Haryana and To issue a writ in the nature of mandamus or any appropriate writ order or direction to the respondent nos. 2 and 4 to put the peti tioners on regular pay scales along with other consequential benefits of a permanent employee from the date of initial appointment Before dealing with the grievances made by the petition ers it would be appropriate to portray the factual back ground. The Education Department of State of Haryana has constituted an Adult Education Scheme under the overall control of Joint Director Adult and non formal Education Department respondent no. 3 herein in the context of the National Adult Education Scheme sponsored by the Government of India the birth anniversary of Mahatma Gandhi in 1978 October 2 1978). The aim of adult education under this scheme is to provide functional literacy to the illiterates in the age group of 15 35. The State Government has also framed another Scheme for the non formal education under the overall control of the same official. The objective of this scheme is to impart learning by special contact courses to the students in the age group of 6 15 who are dropouts from schools. The petitioners are appointed as Supervisors There are hundreds of such Adult Education Centres and Non formal Education Centres. One supervisor is provided for a group of 30 centres. Thus each of the petitioners is in charge of 30 centres under one scheme or the other. He is paid remuneration at the rate of Rs.500 p.m. as fixed sal ary. Each one of them was prior to March 1984 also paid a sum of Rs.60 as fixed travelling allowance which allowance has been increased to Rs. 150 per month from March 7 1984 The Adult Education Centres are run under the Rural Functional Literacy Programme Projectof the Central Government. The project is however administered by the respondent the State of Haryana. According to the respond ent the expenditure in respect of remuneration payable to the petitioners under RFLP is borne by the Central Government. With regard to the centres functioning under the State Adult Education Programme Projectto those of the petitioners who are employed under the Scheme are paid remuneration on the same pattern by the State Government as and by way of honorarium The functions and duties discharged by the petitioners in their capacity as Supervisors under the Adult Education Scheme as per the communication dated April 8 1985 addressed by respondent no. 3 to the District Officers and Project Officers are as under: "The supervisors of the adult education has been given the status equivalent to masters of formal schools and their functions are also like the Block Education Officers of the formal schools. Thus the functions of the supervisors working under Adult Education Scheme are inspection and to impart knowledge The general duties of the supervisors will be: to make educational survey of his own village and nearby villages under the Rural Functional Literacy Programme for starting adult educa tion and non formal education centres to locate and recommend for appointment suitable instructors for these centres from these very villages to give active co operation in their training to give guidance in their reading and writing material to give proper direction to instructors in his cluster the latest techniques of adult education to give guid ance continuously in latest technique of teaching methods inspection of centres and making arrangements for their reading writing material to give model lessons to hold discussions in the Mohallas houses of the community cultivating friendship and personal relationship with the community create awareness and awakening in them in the matter of literacy functionality and awareness The controversy as to whether the Supervisors were full time Supervisors like Respondents 2 to 6 or whether they were part time Supervisors as has been contended by the State of Haryana in its affidavit in reply has to be re solved in favour of the petitioners inasmuch as the documen tary evidence placed on record establishes that the peti tioners were full timeSupervisors. At nexure ’C’ has been produced a document entitled ’Revised financial pattern of the Project with 100 Educational cen tres ....... ". The cadre of Supervisors has been de scribed as full time cadre in this document as evidenced by the following extract: Full time Supervisors one supervisor for a clus ter of 30 centresTA cost on supervisionThe headquarter of each supervisor shall be established in the middle of the village Each supervisor will be present at his Headquarter on a fix day once in a week between 9.30 A.M. to 4.00 P.M. The information of the fix day will be given to all the in structors and adult education officers The monthly tour programme of each Supervisor will be got sanctioned by the Assistant Project Education Officers and made his tour according to this plan as far as possible The Supervisor will stay whole day in the village and will inspect informal educa tion centres in the day and adult education centre in the night He will call the meeting of respected persons of the 721 village on the date of meeting and discuss about the progress of the centre. This meeting can be called before or after the time of the centre If any supervisor leaves the head quarter without permission or does not perform his duties properly the necessary action may be taken against him It is therefore futile to contend that the petitioners in their capacity as Supervisors were required only to perform part time work. As per clauseof the aforesaid extract the supervisors were required to stay for the whole day in the village and were required to visit the Informal Education Centre and the Adult Education Centre in the night. They were also required to go on tour and to remain at the headquarter once a week from 9.30 A.M. to 4.00 P.M The conclusion is therefore inevitable that the petitioners were not part time functionaries but were whole time func The matter may now be examined in this background. The respondent State has resisted the claim of the petitioner for granting them pay in accordance with the pay scales applicable to Respondents 2 to 6 who are Supervisors in the regular cadre discharging similar functions on four grounds viz: that the petitioners are not full time employees the mode of recruitment of the petitioners is different from the mode of recruitment of respondents 2 to 6 the nature of the functions dis charged by the petitioners are not similar to the functions discharged by respondents 2 to 6 and appointments are made on six month ly basis and there is a break in service having regard to the fact that the posts are sanctioned on year to year basis in view of the temporary nature of the Scheme With regard to the first ground for not granting salary on the same basis as of respondents 2 to 6 viz. that they are part time employees whereas respondents 2 to 6 are full time employees having examined the aforesaid records placed before the Court we are of the opinion that there is no substance in this contention With regard to the next contention viz. that the mode of recruitment of the petitioners is different from the mode of recruitment of respondents 2 to 6 we are afraid it is altogether without substance. The contention has been raised in the following termsof the Counter affi davit dated 6 1 1986 filed on behalf of Respondents 1 to 13): It is absolutely incorrect that the Petition ers are similarly placed as the employees under the Social Education Scheme as alleged The latter are whole time employees selected by the subordinate services Selection Board after competing with candidates from any pan of the country. In the case of Petitioners normally the selection at best is limited to the candidates from the Cluster of a few villages only. The contention made by the Petitioners has no justifiable basis addressed by the respondent State of Haryana to the District Officers which has been quoted in the earlier part of the judgment supports the contentions of the petitioners and belies the plea raised by the Respondent State Lastly we have to deal with the contention that the Scheme is a temporary Scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the Scheme. We are unable to comprehend how this factor can be invoked for violating. ’Equal pay for equal work’ doctrine. Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of ’Equal pay for equal work’ is attracted. As regards the effect of the breaks given at the end of every six months we will deal with this aspect shortly hereafter. That however is no ground for refusing aspect the ’Equal pay for equal work’ doctrine. Be it realized that we are concerned with the ’Equal work Equal pay’ doctrine only within the parameters of the four grounds and the fact situation discussed herei nabove. We are not called upon and we have no need or occasion to consider the applicability or otherwise of the said doctrine outside these parameters. For instance we are not required to express any opinion in the context of em ployment of similar nature under different employers or in different cadres under the same or different employers Nor are we concerned with questions required to be dealt with by authorities like the Pay Commissions such as equa tion of cadres or determination of parity differential between different cadres or making assessment of work loads or qualitative differential based on relevant considerations and such other matters. We are concerned in the present matter with employees of the same employer doing same work of same nature discharged in the same department but ap pointed on a temporary basis instead of in a regular cadre on a regular basis. We have therefore decided the questions raised before us in the backdrop of facts of the present case. On the other dimensions of the doctrine we remain silent as there is no need or occasion to speak In the result we are of the opinion that the petitioners are entitled to be paid on the same basis of same pay scale as per which respondents 2 to 6 who are discharging similar duties as Supervisors just like the petitioners are being We are now faced with the problem arising in the context of the fact that appointments of the petitioners were ini tially made for six months and after giving a break of a day or two they were reappointed to the same posts by fresh order. The counter affidavit filed on 23rd November 1985 by the State of Haryana and the documents placed on record go to show that the petitioners’ contention that this is done deliberately with a view to deny to them the benefits enjoyed by the employees similarly situated and discharging similar duties and functions as Supervisors in the regular cadres.We find it difficult to accept the contention of the petitioners that this is being done deliberately and with mala fides attributed to the Respondent State. The petitioners have been appointed in the context of a Scheme which is by the very nature of things transient and temporary. Annexure R 1 to the aforesaid counter affidavit shows that the Scheme was expected to function for ten months. No doubt it has been extended from year to year. But by the very nature and scope of the Scheme once the objective of Adult Education is accom plished in the sense that the illiterate adults of the cluster of villages become literate pursuant to the educa tion imparted at the centres the need for adult education would diminish progressively and ultimately cease. As dis closed in paragraphs 16 and 17 of the aforesaid counter affidavit the targets were expected to be achieved latest by 1990. It was in this background that the posts were sanc tioned on year to year basisof the aforesaid rejoinder affida vit while a Peon in the regular service would be drawing Rs.650 the petitioners would be getting only Rs.500 as fixed salary notwithstanding the nature and importance of the functions discharged by them and the role played by them in the important field of advancement of literacy in the State. And finally we must deal with the question of date with effect from which the petitioners should be paid the difference in salary. In our opinion having regard to the facts and circumstances of the present case ends of justice would be met if the petitioners are paid the differ ence in salaries with effect from the date of the institu tion of the Writ Petition viz. September 18 1985. But it will be convenient to direct the implementation with effect from September 1 1985. We accordingly allow the Writ Peti tion partly and direct as under: The Petitioners shall be fixed in the same pay scale as that of Respondents 2 to 6 The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service arising in the context of the fact that the initial appoint ment orders were for 6 months and fresh appointment orders were issued after giving a break of a day or two The fixation shall be made as per the general principles adopted whenever pay revisions are made. In case upward revision has been effected in respect of the ’supervisors in the regular cadre such revision should be taken into ac count in refixing the pay of the petitioners The amount representing the difference in pay of the petitioners computed as per the present order shall be paid to each petitioner preferably latest by Mahatma Gandhiji’s birthday which falls on 2nd October 1987 or latest by November 1 1987. The petitioners will be entitled to incre ments in the pay scale in accordance with law notwithstand ing the break in service that might have been given We hope and trust that the State of Haryana will not show displeasure at the petitioners who have approached this Court in order to vindicate their right to claim equal pay and that service of no petitioner would be terminated except on reaching the age of superannuation or by way of appropriate disciplinary action or on abandonment of the Scheme. For the sake of abundent caution we direct accordingly Fresh appointment orders will have to be issued reap pointing the petitioners who have continued in service on the expiry of the six months period from time to time in order to give effect to the direction contained in clause V In case the amounts of difference in pay cannot be computed within the time limit granted by this order provi sional and approximate calculations should be made and payment should be made on such basis subject to final ad justment within the time granted The petitioners shall be paid the cost of the Writ Petition quantified at Rs.5 000. Ordered accordingly H.L.C. Petition |
Accident claim -vehicle registered and insured in India – Accident in Nepal-Insurance Company liable to pay compensation – No extra premium can be charged for third party insurance even for extra territorial coverage: Punjab and Haryana High Court | It appeared that the competence of ‘India Motor Tariff’ to issue such instruction to limit the liability of the Insurance Company in terms of the geographical area has not been shown by the Insurance Company. No such instructions; which run counter to or dilute the liability of Insurance Company as defined under Sections 146 to 149 of the Act can be countenanced by the held by Hon’ble Justice Rajbir Sehrawat in Anil Kumar versus Roop Kumar Sharma and another [FAO No.152 of 2017]. The facts leading to this case relate to the on 14.06.1995, Kamal Sharma, along with 54 other pilgrims, left Kurukshetra at about 8.00 AM. They had to go to Haridwar, Ayodhya, Nepal and Jagan Nath Puri etc. They were in the Bus bearing registration No.UP-10B-0939. It is claimed in the claim petition that the bus was taken for the journey after getting permission from Regional Transport Controller, Haridwar as well as from Managing Director, Garhwal Vikas Nigam, and Haridwar. On the intervening night of 17/18.06.1995, at about 2.00 AM, when the bus, in which the deceased-Kamal Sharma was travelling along with other pilgrims, reached the area of Chitwan, District Chandi Bhajan, Village Vikas Samiti, situated in Parevar Bhir at the distance of two kilometres from Naraingarh, the driver of the Bus lost control and the bus fell in Trishuli Nadi. All 54 persons died in the accident. No dead body of any pilgrim could be traced because the river was about 30 meters deep. On account of the death of these persons, several claim petitions were filed, the previous one was of Sona Devi and others. The present petition was filed by Roop Kumar Sharma on account of the death of Kamal Sharma. The counsel for the appellant submits that there was no limitation for use of the vehicle in terms of geographical area; as per the policy issued for this vehicle and the bus was authorised to travel to an area of Nepal. The Tribunal held that the claim petition is not maintainable in India if the accident had taken place out of India. However, this Court remanded the matter to the Tribunal for the decision of the same, on merits, after holding that claim petition can be filed in India. Counsel further submits that since there is no restriction in the policy regarding the use of the vehicle outside the geographical territory of India, therefore, the Insurance Company is liable to make the payments. On the other hand, learned counsel for the respondent-Insurance Company has submitted that since the policy produced on record is limited to cover the vehicle to be used only in the geographical area of India, therefore, the Insurance Company is not liable for payment of compensation on account of any accident occurring outside India. | on 27 11 FAO No.1517 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No.1517 Date of decision : 13.11.2017Anil Kumar ......AppellantversusRoop Kumar Sharma and another .....RespondentsCORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT PRESENT : Mr. Naveen Daryal Advocate for the appellant. Brig. B.S.Tanque Advocate for respondent No.2 Insurance Company. RAJBIR SEHRAWAT J.makes the Insurance Company liable to satisfy the decree oraward for the accidents occurring outside India even if the sameis passed by a foreign Court but according to provision ofSection 149. If the award of a foreign Court passed as perprovisions of Section 149 of the Act is enforceable against anInsurance Company in India then there is no question of theliability of Insurance Company being excluded in Courts inIndia on the ground that accident occurred outside India.It is not even disputed by learned counsel for therespondents that the bus in question had the necessarypermission to ply in the area of Nepal. Therefore its insurancepolicy would be deemed to be validly permitted to travel in thearea of travel of the bus. Hence for the liability arising from theaccident involving the vehicle entitled to ply in Nepal theinsurer of the vehicle would be very much liable to make thepayment.Still further the bare perusal of the policy showsthat the policy and the schedule produced on record by theappellant do not show any restriction of geographical area interms of exclusion of the liablity of the insurer. The policyproduced on record by the appellant shows that this policy doesnot have any restriction against plying the vehicle outside India.In the name of limitation as to use only organised racing reliability test and speed testing have been excluded in terms of on 27 11 FAO No.1517 8 the Motor Vehicles Act. There is no such clause mentioned asexcluding liablity of the Insurance Company for an accidenthappening outside India. Athough the copy of the insurance policy producedon record by the Insurance Company as Ex. R 4 contains avague writing which speaks “Geographical area zone India”.However comparison of the policies Exhibits R 3 and R 4 showthat the policy numbers on these two policies are different. Thepolicy Ex. R 4 carries different details regarding the premiumpaid and even regarding the details of the vehicle insured. So itis obvious that the Insurance Company has tried to place onrecord the insurance policy not pertaining to the bus in questionto avoid its liability. This attempt has been made by theInsurance Company only for one reason that this policycontains stipulation regarding the geographical area zone whichmentions India whereas the original policy cover noteproduced by the appellant does not show any such restriction.Therefore on the basis of this policy Exhibit R 4 which is noteven proved to be the policy of the bus in question theInsurance Company can not avoid its liability to make thepayment of the compensation awarded on account of accidentinvolving the vehicle in question.Faced with this situation learned counsel for therespondent Insurance Company submits that the limitation forliability of insurance qua area of operation outside India hasbeen defined by India Motor Tariff and therefore Insurance on 27 11 FAO No.1517 9 Company cannot be held liable for any accident which occurredoutside the territorial limits of Union of India.For that purpose the counsel relies upon thedocument Ex. R 7 which contains a specimen of theendorsement advised to be included in the policy. However thisdocument itself is not a legal document to exclude the statutoryliability of Insurance Company. This is only a suggestion of theAdvisory Committee. This was required to be included in thepolicy by individual Insurance Company if at all consideredappropriate and desirable by it while insuring a vehicle. Thisdocument in itself is not sufficient to exclude the liability of theInsurance Company in an accident which occurred outside theterritorial jurisdiction of India.As stated above nothing has been placed on recordby the Insurance Company to show that the insurance policyregarding this particular vehicle contained this stipulation andendorsement as advised by India Motor Tariff . Moreover it isnot on record as to since when the respondent InsuranceCompany started to follow this India Motor Tariff Advisory ifat all it follows the same. Moreover the competence of India Motor Tariff toissue such instruction to limit the liability of Insurance Companyin terms of geographical area has not been shown by theInsurance Company. No such instructions which run counter toor dilute the liability of Insurance Company as defined underSections 146 to 149 of the Act can be countenanced by the 1 on 27 11 FAO No.1517 10 Court.A perusal of the record also shows that all theseobjections were not even raised by the Insurance Companywhile filing the written statement. On the contrary in the writtenstatement the Insurance Company has taken the stand that theirliability is limited to the extent of Rs.50 000 only. Therefore the argument of learned counsel for the Insurance Company otherwise also is beyond the pleadings. Hence the same cannot be accepted by this Court.In view of the above the findings of the Tribunal to the extent of the exclusion of the liablity of the InsuranceCompany and the consequent Award to that extent is set aside.It is ordered that the liablity to make the payment of the awardedamount shall be of the Insurance Company. Hence the appeal is allowed.November 13 2017( RAJBIR SEHRAWAT )sahil soni JUDGE Whether speaking reasoned:Yes NoWhether reportable:Yes No |
National Highways Authority of India v/s Sayedabad Tea Company Ltd. & Ors. | When the special law sets out a self-contained code, the application of general law would impliedly be excluded. The relevant seminal facts are that the subject land comprised in “Sayedabad Tea Estate” situated at Mouza Purba Madati, J.L. No. 108, Police Station Phansidewa, Dist. Darjeeling measuring 5.08 acres was acquired by the appellant (National Highways Authority of India) in exercise of its powers under Section 3(D) of the Act 1956 vide notification dated 22nd November, 2005 under L.A.P. Case No. 4/200405 for the purpose of construction of the highways.In the instant case, the respondentapplicant being dissatisfied with the award of compensation determined by the competent authority under subsection(1) of Section 3G of the Act, 1956 filed application for appointment of an Arbitrator in terms of Section 3G(5) to the Central Government on 8th December, 2006. As alleged, since the Central Government has not responded to his request for appointment of an Arbitrator in terms of letter dated 8th December, 2006 within a period of 30 days from receipt of the request, application was filed on 7th March, 2007 to the Chief Justice/his designate for appointment of an Arbitrator invoking Section 11(6) of the Act, 1996. It reveals that the Arbitrator was appointed by the Central Government sometime in April 2007.The High Court of Calcutta taking note of the fact that the Arbitrator has been appointed by the Central Government under Section 3G(5) of the Act, 1956 after the respondentapplicant had moved an application to the Chief Justice/his Designate invoking its power under Section 11(6) of the Act, 1996 held that right of appointment of the Arbitrator by the Central Government stands forfeited as it failed to appoint the Arbitrator until filing of the application under Section 11(6) of the Act, 1996 before the High Court of Calcutta and appointment of Arbitrator during the pendency of proceedings, cannot be said to be a valid appointment and hence referred the matter to be placed before the Chief Justice for naming an Arbitrator vide its Order dated 6th July, 2007.Immediately after passing of the order dated 6th July, 2007, the appellant moved an application for review and it was brought to the notice of the High Court that the Act, 1956 being a special enactment laying down a procedure for appointment of an Arbitrator where the power is being exclusively vested with the Central Government under Section 3G(5) of the Act, 1956, the application made under Section 11(6) of the Act, 1996 is not maintainable but this was not considered to be a valid reason for invoking review jurisdiction by the High Court as envisaged under Order 47 Rule 1 read with Section 114 of Code of Civil Procedure and the review application was dismissed vide Order dated August 27, 2007.ISSUE BEFORE THE COURT: Whether the application under Section 11 of the Arbitration and Conciliation Act, 1996 is maintainable in view of Section 3G(5) of the National Highways Act, 1956 which provides for an arbitrator by the Central Government.RATIO OF THE COURT:Mr. Vikas Goel, learned counsel for the appellant submits that the Act 1956 being a special enactment is a code in itself provide not only the procedure of acquisition but also the mode of determining compensation by the competent authority and any person, if aggrieved by the compensation determined under sub sections(1) or (2) of Section 3G of Act 1956 can certainly move an application for appointment of an Arbitrator to which a Central Government is under obligation to appoint under Section 3G(5) of the Act 1956. But before the matter could be proceeded, the respondent-applicant approached the High Court by filing an application under Section 11(6) of the Act 1996 which was not maintainable and this being the settled principles of law that the special law prevail over the general law, the provisions of Act 1996 could not have been invoked at least for the appointment of an Arbitrator in abrogating the power of the Central Government in appointing the Arbitrator as contemplated under Section 3G(5) of Act 1956 and this being an apparent error in law committed by the High Court needs to be interfered by this Court. He has placed reliance on the recent judgment of two Judges’ Bench of this Court in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. Vs. Prakash Chand Pradhan & Ors. passed in Civil Appeal No. 5250 of 2018 decided on 16th May, 2018. Per contra, Mr. Prashant Bhushan, learned counsel for the respondents, while supporting the order passed by the High Court of Calcutta impugned in the instant proceedings submits that subsection(6) of Section 3G clearly postulates that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration under the Act, 1956. If the authority to whom application was filed for appointment of an Arbitrator under Section 3G(5) of Act, 1956 has failed to discharge its obligations within 30 days of presentation of the application which indisputedly was December, 2006 or until filing of the application for appointment of an Arbitrator to the Chief Justice/his Designate under Section 11(6) of the Act, 1996 i.e. 7th March, 2007, the respondent was justified in taking recourse to subsection(6) of Section 3G of Act, 1956 for appointment of an Arbitrator under Section 11(6) of Act, 1996 and has forfeited its right to appoint an Arbitrator after presentation of the application under the Act, 1996. Reliance was placed on Deep Trading Company Vs. Indian Oil Corporation and Others 2013(4) SCC 35.The Court observed that at the very outset, we may notice that the two Judge Bench of this Court in the recent judgment in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. case(supra), while dealing with the scope of subsections (5) and (6) of Section 3G of the Act 1956 with reference to Section 11 of the Act, 1996 has held that the Act of 1956 being a special enactment and Section 3G in particular provides an inbuilt mechanism for appointment of an Arbitrator by the Central Government. Hence Section 11 of the Act, 1996 has no application and the power is exclusively vested with the Central Government under Section 3G(5) of the Act, 1956 for appointment of an Arbitrator and if the Central Government does not appoint an Arbitrator within a reasonable time, it is open for the party to avail the remedy either by filing a writ petition under Article 226 of the Constitution of India or a suit for the purpose but the remedy of Section 11 of Act 1996 is not available for appointment of an Arbitrator.It is settled principles of law that when the special law sets out a selfcontained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and subsection (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under subsection (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application. The irresistible conclusion is that the legislature in its wisdom intended to abrogate the power for appointment of an Arbitrator under the provisions of the Act, 1996. In our considered view, the High Court of Calcutta was not holding its competence to appoint an Arbitrator invoking Section 11 of Act, 1996. We are also of the considered opinion that in view of the power being vested exclusively with the Central Government to appoint an Arbitrator under Section 3G(5) of the Act 1956, being a special enactment, the application filed under Section 11(6) of the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act, 1996 could not be invoked for the purpose. DECISION HELD BY COURT:It is indeed true that the Arbitrator who was appointed by the Central Government subsequent to the filing of an application under Section 11 of the Act 1996 in April, 2007 could not proceed after the Arbitrator was appointed pursuant to the Order impugned in the instant proceedings, who too has later recused and almost 12 years have rolled by now, we deem it appropriate to observe that there is no need to file any application by the respondentapplicant and the Central Government shall consider and appoint an Arbitrator in terms of Section 3G(5) of the Act 1956 within a period of 30 days with prior intimation to the respondents. As the litigation has consumed a sufficient long time, we consider it appropriate to further observe that the Arbitrator so appointed by the Central Government may adjudicate and decide the dispute within a reasonable time but in no case later than six months after the respondentapplicant record its presence in the proceedings.The appeals accordingly succeed and are allowed. The orders passed by the High Court dated 6th July, 2007 and 27th August, 2007 are hereby set aside. The Arbitrator may be appointed by the appellants in terms indicated above. No costs. | The moot question which arises before us is whether the Act 1996(hereinafter being referred to as “Act 1996”) is Act 1956 which provides for appointment of an Arbitrator by the Central The relevant seminal facts are that the subject land comprised in “Sayedabad Tea Estate” situated at Mouza Purba Madati J.L. No. 108 Police Station Phansidewa Dist. Darjeeling measuring 5.08 acres was acquired by the appellant in exercise of its powers under Section 3(D) of the Act 1956 vide notification dated 22nd November 2005 under L.A.P. Case No. 4 200405 for the The Act 1956 is a comprehensive code in itself and a are several claimants over the amount deposited towards compensation determined by the competent authority in accordance with the mechanism provided under Section 3G of the Act 1956. If the amount so determined by the competent not acceptable to either of the parties the amount shall on an application by either of the parties be determined by the Arbitrator to be appointed by the Central Government under Section 3G(5) of the Act. While determining the amount of compensation under subsection(1) or subsection(5) it is the duty of the Arbitrator to take into consideration the relevant 1956. Where the amount determined by the Arbitrator is in excess of the amount determined by the competent authority under Section 3G of the Act 1956 the Arbitrator may at its discretion award interest at nine per cent per annum on the of taking possession under Section 3D till the date of actual Determination of amount payable as 1) … 2) … 3) … 4) … under subsection or subsection is not acceptable to either of the parties the amount shall on an application by either of the parties be determined by the arbitrator to be appointed by the 6) Subject to the provisions of this Act the provisions of 7) The competent authority or the arbitrator while section as the case may be shall take into of publication of the notification under b) the damage if any sustained by the person interested at the time of taking c) the damage if any sustained by the person interested at the time of taking acquisition injuriously affecting his other immovable property in any manner or his earnings d) if in consequences of the acquisition of the land the person interested is compelled to change his residence or place of business the reasonable expenses if any incidental to such the competent authority the arbitrator may award amount from the date of taking possession under In the instant case the respondentapplicant being competent authority under subsection(1) of Section 3G of the Act 1956 filed application for appointment of an Arbitrator in terms of Section 3G(5) to the Central Government on 8th December 2006. As alleged since the Central Government has terms of letter dated 8th December 2006 within a period of 30 days from receipt of the request application was filed on 7th of an Arbitrator invoking Section 11(6) of the Act 1996. It reveals that the Arbitrator was appointed by the Central Court of Calcutta and appointment of Arbitrator during the pendency of proceedings cannot be said to be a valid Immediately after passing of the order dated 6th July 2007 enactment laying down a procedure for appointment of an Central Government under Section 3G(5) of the Act 1956 the application made under Section 11(6) of the Act 1996 is not invoking review jurisdiction by the High Court as envisaged under Order 47 Rule 1 read with Section 114 of Code of Civil P.N. Sinha) who was appointed by the High Court of Calcutta pursuant to Order dated 6th July 2007 under Section 11 of the Act 1996 before initiation of the proceedings sent the letter of It is informed to this Court that the Arbitrator who was Act 1956 in April 2007 could not have proceeded after the intervention was made by the High Court of Calcutta in appointing the sole Arbitrator under Section 11(6) of the Act 1996. That for all practical purposes the dispute raised by the respondentapplicant aggrieved by the compensation awarded far not been adjudicated because of the competence of the to whether it would be under the Act 1956 or Act 1996 as 10. Mr. Vikas Goel learned counsel for the appellant submits determining compensation by the competent authority and any the Act 1956. But before the matter could be proceeded the respondentapplicant approached the High Court by filing an special law prevail over the general law the provisions of Act In support of his submission learned counsel for the appellant has placed reliance on the recent judgment of two Judges’ Bench of this Court in General Manager National Highways and Infrastructure Development in Civil Appeal No. 52518 decided on 16 th May 2018 and Orders passed by the High Court i.e. 6th July 2007 and 27th 12. Per contra Mr. Prashant Bhushan learned counsel for the respondents while supporting the order passed by the High whom application was filed for appointment of an Arbitrator under Section 3G(5) of Act 1956 has failed to discharge its obligations within 30 days of presentation of the application which indisputedly was December 2006 or until filing of the application for appointment of an Arbitrator to the Chief Justice his Designate under Section 11(6) of the Act 1996 i.e. 7 th March 2007 the respondent was justified in taking recourse to presentation of the application under the Act 1996 before the no legal impediment before the High Court of Calcutta in and in support of his submission placed reliance on the judgment of this Court in Deep Trading Company Vs. Indian 14. We have heard learned counsel for the parties and with 15. At the very outset we may notice that the two Judge Bench of this Court in the recent judgment in General Manager Highways and the scope of subsections and of Section 3G of the Act the Act 1956 being a special enactment and Section 3G in with the Central Government under Section 3G(5) of the Act 1956 for appointment of an Arbitrator and if the Central 16. We are in full agreement with the legal position stated by a two Judge Bench of this Court in General ManagerNational Highways and Infrastructure Development Corporation Ltd. case(supra) but like to add further that the the Seventh Schedule of the Constitution with the exclusive inbuilt mechanism not only in initiating acquisition until and its adjudication by the Arbitrator to be appointed by the Act 1956 after the land is acquired there shall be paid an of the competent authority under subsections or of Section 3G of the Act 1956 and any person who is aggrieved by application being filed by either of the parties has to be determined by the Arbitrator to be appointed by the Central 18. After analysing the scheme it can be assumed that the is further strengthened in view of Section 3J of the Act which eliminates the application of the Land Acquisition Act 1894 to out a selfcontained code the application of general law would impliedly be excluded. In the instant case the scheme of Act 1956 being a special law enacted for the purpose and for Section 3G(5) of Act 1956 and subsectionof Section 3G itself clarifies that subject to the provisions of the Act 1956 the to the extent where the Act 1956 is silent the Arbitrator may of Act 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned the power being exclusively vested with the Central Government as envisaged 20. The plea of the respondents that they have rightly taken Act 1956 clearly stipulates that the provisions of the Act 1996 intended to give overriding effect to the provisions of the Act conclusion is that the legislature in its wisdom intended to the application under Section 11(6) of the Act 1996 is maintainable in view of statutory provisions of Electricity Act 2003 adjudicating the dispute between the licencees and the of the Electricity Act 2003 in particular this Court in Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Limited override the general provision in Section 11 of the disputes between the licensee and generating companies. It is well settled that the special law overrides the general in our adjudicate arbitrate disputes between licensees and law. Hence generating companies and only Section 86(1)(f) shall 23. We are also of the considered opinion that in view of the the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act 1996 could not be 3G(5) of the Act 1956 within a period of 30 days the High Court of Calcutta alone was holding its competence to appoint an Arbitrator and application was submitted by the respondent applicant on 7th March 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has 3G of Act 1956 for the Central Government to appoint an request being made by either of the party aggrieved it will be vested with the Central Government for appointment of an Section 11 of Act 1996 has no application. The judgment in Arbitrator under the special enactment as in the instant case under Act 1956 and secondly if one party fails to exercise its for consideration was whether the rights of the party stand forfeited to appoint an Arbitrator after the party has invoked Section 11(6) of the Act 1996 which as already observed by us is under Section 11 of the Act 1996 in April 2007 could not to observe that there is no need to file any application by the and appoint an Arbitrator in terms of Section 3G(5) of the Act 1956 within a period of 30 days with prior intimation to the respondents. As the litigation has consumed a sufficient long time we consider it appropriate to further observe that the Arbitrator so appointed by the Central Government may no case later than six months after the respondentapplicant 26. The appeals accordingly succeed and are allowed. The orders passed by the High Court dated 6th July 2007 and 27th August 2007 are hereby set aside. The Arbitrator may be 27. Pending application(s) if any stand disposed of |