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There may be Common Factors but the Factors are Always not the Same: High Court of Shimla

No relation with the parameters taken into consideration for granting bail under Section 439 Cr.P.C. with the parameters relevant for considering bail application under Section 438 Cr.P.C., there may be common factors but the factors are always not the same.This honorable judgement was passed by High Court of Shimla in the case of Mangal Singh Negi Versus Central Bureau of Investigation [CRMPM No.321 of 2021] by The Hon’ble Mr. Vivek Singh Thakur, Judge. The instant petition had been filled seeking anticipatory bail under Section 438 of the Code of Criminal Procedure in case FIR registered in SPE Branch CBI, ACB, Shimla, H.P., under Sections 120-B along with Sections 409, 420, 467, 468 and 471 of the Indian Penal Code and Sections 13(2) and 13(1)(c) & (d) of Prevention of Corruption Act. Petitioner had joined Allahabad Bank as a Probationer Officer. Thereafter he was promoted as a Manager and as of now he is serving as a Senior Manager in Allahabad Bank Hamirpur. Petitioner apprehended his arrest, during ongoing investigation by CBI being carried out with respect to as many as 26 Institutions, main accused had opened accounts of their Partnership Firm ASA Marketing Solutions and also of large number of students and the petitioner is the officer, who is being considered an instrumental to the ill-design of main accused to swallow huge amount of scholarship for which students were entitled. He had been found actively associated with main accused, that a payment of `1,50,000/- is stated to have been received by the petitioner on the basis of self-cheque issued by main accused. The learned council referred the case of Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, (1980), State of Gujarat Vs Mohanlal Jitamalji, (1987) 2 SCC 364, State Represented by CBI Vs. Anil Sharma, (1997) 7 SCC 187 and Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. (DB), (2011) 1 SCC 694. The court opinioned that, “It is canvassed on behalf of the petitioner that co-accused, main conspirator in the case, has been enlarged on bail by a Co-ordinate Bench of this Court, passed in therefore, right of petitioner for enlarging him on bail, on the ground of parity, has also been pressed. Co accused, may be main accused, has been enlarged on bail in a petition filed under Section 439 Cr.P.C. as she was in judicial custody. There may not be any relation with the parameters taken into consideration for granting bail under Section 439 Cr.P.C. with the parameters relevant for considering bail application under Section 438 Cr.P.C. There may be common factors but the factors are always not the same. However, in absence of established necessity of custodial interrogation, it may be relevant to some extent sometimes but not always.”

Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CRMPM No.3221 Reserved on : 31.3.2021 Date of Decision : April 1 2021 Mangal Singh Negi ….Petitioner Versus Central Bureau of Investigation ….Respondent. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting Yes. For the Petitioner : Mr. Navlesh Verma Advocate. For the respondent : Mr. Anshul Bansal Mr. Anshul Attri and Ms Manju Dhatwalia Advocates. Shri Balbir Sharma Shri Rajesh ThakurShri Jagat Ram& Shri Rajender Kumaralongwith record. Vivek Singh Thakur Judge Instant petition has been preferred seeking anticipatory bail under Section 438 of the Code of Criminal Procedurein favour of petitioner in case FIR Crime No.RC0962019A00019 registered in SPE Branch CBI ACB Shimla H.P. under Sections 120 B alongwith Sections 409 420 467 468 and 471 of the Indian Penal Codeand Sections 13(2) and 13(1)(c) &of Prevention of Corruption Act. Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …2… 2. Petitioner had joined Allahabad Bank as a Probationer Officer. Thereafter he was promoted as a Manager and as of now he is serving as a Senior Manager in Allahabad BankHamirpur. In present case opening of accounts of ASA Marketing Solutions and large number of students during posting of the petitioner in Branches of Allahabad Bank at Panchkula Solan and Chandigarh is the fact for considering him as an accused in scholarship scam. 3. Petitioner is apprehending his arrest during ongoing investigation by CBI being carried out with respect to as many as 26 Institutions regarding scholarship scams because during his posting at Solan Chandigarh and Panchkula w.e.f. July 2011 to June 2018 main accused Rajdeep Singh Krishan Kumar and Babita Rajta had opened accounts of their Partnership Firm ASA Marketing Solutions and also of large number of students and the petitioner is the officer who is being considered an instrumental to the ill design of main accused to swallow huge amount of scholarship for which students were entitled. 4. Status report stands filed wherein it is stated that petitioner remained posted from July 2011 to July August 2014 in Panchkula Branch from July August 2014 to Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …3… May 2015 in Chandigarh Branch June 2015 to May June 2017 in Solan Branch and June 2017 to June 2018 in Panchkula Branch of Allahabad Bank now known as Indian Bank and during his posting at Panchkula he had opened bank account of Partnership Firm ASA Marketing Solutions and 28 bank accounts of students out of total 135 bank accounts of students in the said Branch claimed to be students by aforesaid three partnersin their so called institutions whereas according to investigation carried out till date all these institutions were fake having no sanction approval or affiliation of any competent authority as required under law to run such institutions. As per Investigating Agency signatures of petitioner on account opening forms not only by Smt. Sapna posted as a Clerk in Allahabad Bank but have also been identified by the petitioner himself. 5. It is also case of the prosecution that during his posting at Solan out of 186 account numbers of students opened in that Branch 116 accounts were opened by the petitioner and he had also transferred scholarship amount received in accounts of students at Panchkula to the accounts of ASA Marketing Solutions opened at Solan Branch by him on the basis of a letter of Rajdeep Singh and Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …4… Krishan Kumar without any authorization from the students but on the basis of so called authority letters alleged to have been issued by the students which was without any date with no amount mention and without any Branch name of the Bank with which these accounts were opened. According to prosecution on transfer of petitioner from Panchkula to Solan main accused Rajdeep Singh and Krishan Kumar with the help of petitioner had opened a new account in the same bank i.e. in Solan Branch. It is also reported that during his posting at Chandigarh petitioner had opened account of four students in that Branch also and ASA Marketing Solutions was already having account in that Branch. According to prosecution accounts of the students at Panchkula Solan and Chandigarh were opened without consent and knowledge of the students in their absence but on the basis of documents supplied by Rajdeep Singh and Krishan Kumar but without verifying the students in person by visiting their institutions or otherwise. 6. According to prosecution scholarship amount received in accounts of students from the Government was transferred to accounts of ASA Marketing Solutions by petitioner without any enforceable debit authority and Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …5… without verification of the account holders their willingness and their identity. 7. Detail of amount as per status report and record of Investigating Agency so transferred is as under: Sr. No. Amount transferred To Account Number Name of Transferee Account holder Date of transfer Amount in Rs. 1. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 15 91 200 2. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 15 33 700 3. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 20 66 000 4. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 2 47 600 5. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 15 12 800 6. Various students bank accounts 50168257330 ASA Marketing Solutions 19.12.2013 14 97 300 7. Various students bank accounts 50168257330 ASA Marketing Solutions 03.04.2014 Rs. 14 91 900 8. Various students bank accounts 50168257330 ASA Marketing Solutions 03.04.2014 Rs. 30 44 000 9. Various students bank accounts 50168257330 ASA Marketing Solutions 01.11.2017 1 07 480 10. Various students bank accounts 50168257330 ASA Marketing Solutions 01.11.2017 1 32 480 11. Various students bank accounts 50168257330 ASA Marketing Solutions 01.11.2017 1 76 640 12. Various students bank accounts 50168257330 ASA Marketing Solutions 01.11.2017 1 81 770 Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …6… 8. It is also claim of the prosecution that for act and conduct of the petitioner he has been found actively associated with main accused Rajdeep Singh and Krishan Kumar as it has also come in the knowledge during investigation from the account statements of Bank account of ASA Marketing Solutions Solan that a payment of `1 50 000 is stated to have been received by the petitioner on the basis of self cheque issued by main accused Rajdeep Singh and Krishan Kumar. 9. Learned counsel for respondent CBI has submitted that custodial interrogation of the petitioner is necessary so as to elucidate truth and further information from the petitioner regarding any other amount received by him or on behalf of main accused Rajdeep Singh Krishan Kumar and Babita Rajta and therefore he has over vehemently pressed for rejection of bail enabling the Investigating Agency to have custodial interrogation of the petitioner. 10. It is also case of the Investigating Agency that statements of Bank employees who were serving at relevant point of time in the Branches of the Bank where petitioner was posted during 2011 to 2018 have also been recorded wherein witnesses have revealed that petitioner Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …7… had opened the accounts of ASA Marketing Solutions and accounts of large number of students in their absence and without verifying the facts during his respective tenure in above referred stations. 11. It is also case of the prosecution that there was no reason or logic in opening the accounts of students purported to be studying in Chamba Una Kangra and Nahan at Panchkula Solan and Chandigarh. Prosecution has also produced large number of Account Opening Forms taken into possession from Solan Panchkula and Chandigarh Branches and on the basis of these forms it is submitted by learned counsel for the respondent CBI that forms are incomplete in so many respects and no local addresses of students of Panchkula or Solan or Chandigarh have been mentioned therein. Further that authorization letters attached with these forms have been prepared before opening of the accounts and some of these authorization letters are having a date which is prior in time to the date of opening of the account whereas in some others column of date is blank. He has also pointed out certain authorization letters wherein even name of the bank has been mentioned but without mention of Branch and in none of these authorization letters account numbers Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …8… of account holders have been mentioned. It is further pointed that petitioner while serving at Solan was having no authority or authorization to transfer amount from accounts of students opened at Panchkula to the account of firm of main accused opened at Solan as the authorization letter enclosed with those Account Opening Forms were not only without mention of account number but also addressed to the Senior Manager Allahabad Bank Panchkula. 12. Learned counsel for the respondent CBI has also referred material communication including that for Bank accounts starting with digit “59” record maker and checker are not found in the system. He has further pointed that most of the account numbers opened at Panchkula are starting with digit “59” and therefore he claims that petitioner has opened accounts by bye passing system and without following proper procedure only to facilitate main accused to commit scam of crores of rupees the amount for which in fact was to be disbursed to the students. 13. To substantiate plea for rejection of petition learned counsel for respondent CBI has put reliance upon Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab 2 SCC 565State of Gujarat Vs. Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …9… Mohanlal Jitamalji 2 SCC 364 State Represented by CBI Vs. Anil Sharma 7 SCC 187 Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors.(2011) 1 SCC 694 Y.S. Jagan Mohan Reddy vs. CBI(2013) 7 SCC 439 Nimmagadda Prasad Vs. CBI(2013) 7 SCC 466 State of Bihar & Anr. Vs. Amit Kumar alias Bachcha Rai(2017) 13 SCC 751 Rohit Tandon Vs. Directorate of Enforcement 11 SCC 46Serious Fraud Investigation Office Vs. Nittin Johari & Anr. 9 SCC 165Cr.M.P.(M) Nos. 8918 titled as Ankit vs. State of Himachal Pradesh and other connected petitions and Cr.M.P. No. 9420 titled as Freed vs. State of H.P. alongwith other connected petitions. 14. It is pointed out on behalf of the petitioner that during posting of the petitioner at Panchkula he as not Incharge of the Branch but Anu Bhargav and A.K. Verma respectively were posted as Assistant General Managers in these respective stations who were Incharge of the respective Branches and at Panchkula petitioner had opened account of students after receiving directions from Assistant General Managers and further that a Firm or a person can open the account anywhere in India on the basis of KYCand at the time of opening of Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …10… account of ASA Marketing Solutions they had produced copies of Partnership Deed Aadhar Card Passport Pan Card etc. alongwith Account Opening Form and therefore no illegality or criminality has been committed by the petitioner in opening the account of ASA Marketing Solutions. Further that students were also having right to open their account anywhere wherever they like and the accounts opened by the petitioner either at Panchkula or Solan or Chandigarh were duly proposed and identified by the Institutions and at the time of opening large number of accounts of Institutions verification recommendation of such Institutions is considered to be sufficient for opening accounts. It is also submitted that once authority letter authorizing the Bank to transfer the fee of respective students in favour of Educational Institution or Society Organization running such Institute is given by the student the Institute is entitled for recovery of fee through bank from accounts of students as authorized by the students themselves. 15. It is also contended on behalf of the petitioner that now statements of witnesses have been recorded and record of the bank has been collected and petitioner has been interrogated after passing of order dated 16.02.2021 Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …11… by this Court granting interim bail as petitioner has continuously and regularly joined investigation and cooperated the Investigating Officer which is also evident from the status report wherein no such allegation has been levelled against the petitioner. Moreover no prayer for custodial interrogation has been set out in the status report filed on behalf of the respondent CBI in the present case. It is also contended that petitioner has subjected him for investigation and there is no possibility of his fleeing from justice and he is permanent employee of the Bank serving on a higher post i.e. Senior Manager and thus there is no possibility of his absconding as he has roots and enjoying good status in the society. Further that there is no criminal antecedents of the petitioner and omission and commission on the part of the petitioner pointed out for establishing his connivance conspiracy with main accused for commission of alleged offence are nothing but mere irregularities committed by the petitioner in good faith. 16. It is also contended on behalf of the petitioner that there is difference between irregularity illegality or criminality and for alleging criminality degree of veracity of evidence required is higher than in case of irregularity or illegality and for absence of any criminality petitioner Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …12… cannot be sated to have committed the offence as alleged. According to learned counsel for the petitioner at the most petitioner is a witness to the opening of accounts by main accused either of ASA Marketing Solutions or of students. 17. With respect to payment of `1 50 000 as recorded in the account statements to have been released in favour of petitioner it was stated that it was a self drawn cheque which was duly signed by Rajdeep Singh and Krishan Kumar on its front as well as back side and petitioner had only acted as a passing officer and there is no signature or any other document so as to connect the payment of `1 50 000 with petitioner and stray entry made in account statements without any material or evidence on record cannot be made basis for drawing conclusion of connivance of the petitioner with main accused. 18. History and object of incorporation of provisions of Section 438 Cr.P.C. and also factors and principles to be taken into consideration at the time of considering bail application under Section 438 Cr.P.C. have been discussed in detail in judgment dated 06.07.2020 passed by this Court in Cr.M.P.(M) No.9420 titled as Freed vs. State of H.P. Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …13… 19. Provisions related to information to the Police and their powers to investigate have been incorporated in Sections 154 to 176 contained in Chapter XII of the Code of Criminal Procedurewhich also include that if such arrest is necessary “for proper investigation of the offence”. Whereas Section 41(1)(ba) empowers the Police Officer to make such arrest of a person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence and the Police Officer has reason to believe on the basis of that information that such person has committed the said offence and for commission of such offence no further condition is required to be satisfied by the Police Officer. Therefore Police Officer Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 Cr.P.C. 22. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …15… liberty except according to the procedure established by law. Arrest of an offender during investigation as discussed supra is duly prescribed in Cr.P.C. 23. At the same time Cr.P.C. also contains Chapter XXXIII providing provision as to bail and bonds which empowers the Magistrate Sessions Court and High Court to grant bail to a person arrested by the Police Investigating Officer in accordance with provisions contained in this Chapter. This Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person apprehending his arrest. Normally such bail is called as “Anticipatory Bail”. Scope and ambit of law on Anticipatory Bail has been elucidated by the Courts time and again. 24. Initially provision for granting Anticipatory Bail by the court was not in the Cr.P.C. but on the recommendation of the Law commission of India in its 41st Report the Commission had pointed out necessity for introducing a set provision in the Cr.P.C. enabling the High Court and Court of Session to grant Anticipatory Bail mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …16… days. It was also observed by the Commission that with the accentuation of political rivalry this tendency was showing signs and steady increase and further that where there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail there seems no justification to require him to submit to custody remain in prison for some days and then apply for bail. On the basis of these recommendations provision of Section 438 Cr.P.C. was included in Cr.P.C. as an antidote for preventing arrest and detention in false case. Therefore interpretation of Section 438 Cr.P.C. in larger public interest has been done by the Courts by reading it with Article 21 of the Constitution of India to keep arbitrary and unreasonable limitations on personal liberty at bay. The essence of mandate of Article 21 of the Constitution of India is the basic concept of Section 438 Cr.P.C. 25. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail at the first instance after taking into consideration inter alia the factors stated in sub sectionof Section 438 Cr.P.C. and in case of issuance of an interim order for grant of Anticipatory Bail Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …17… the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the Police Prosecution. Section 438 Cr.P.C. prescribes certain factors which are to be considered at the time of passing interim order for grant of Anticipatory Bail amongst others but no such factors have been prescribed for taking into consideration at the time of final hearing of the case. Undoubtedly those factors which are necessary to be considered at the time of granting interim bail are also relevant for considering the bail application at final stage. 26. A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation keeping view various parameters as elucidated by the court in Gurbaksh Singh Sibbia v. State of Punjab 2 SCC 565 and Sushila Aggarwal & others v. State& another 7 SCC 731 cases and also in other pronouncements referred by learned counsel for CBI. 27. The Legislature in order to protect right of the Investigating Agency and to avoid interference of the Court at the stage of investigation has deliberately provided under Section 438 Cr.P.C. that High Court and the Court of Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …18… Session are empowered to issue direction that in the event of arrest an offender or a suspect shall be released on bail. The Court has no power to issue direction to the Investigating Agency not to arrest an offender. A direction under Section 438 Cr.P.C. is issued by the Court in anticipation of arrest to release the offender after such arrest. It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation for nature and gravity of accusation their antecedents or their conduct disentitling them from favour of Court for such protection. 28. Where right to investigate and to arrest and detain an accused during investigation is provided under Cr.P.C. there are provisions of Articles 21 and 22 of the Constitution of India guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. It is well settled that interference by the Court at the investigation stage in normal course is not warranted. However as discussed supra Section 438 Cr.P.C. is an exception to general principle and at the time Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …19… of exercising power under Section 438 Cr.P.C. balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to interference in the investigation. 29. Though bail is rule and jail is exception. However at the same time it is also true that even in absence of necessity of custodial interrogation also an accused may not be entitled for anticipatory bail in all eventualities. Based on other relevant factors parameters and principles enumerated and propounded by Courts in various pronouncements some of which have also been referred by learned counsel for CBI anticipatory bail may be denied to an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C. 30. Nature and gravity of offence extent of involvement of petitioners manner of commission of offence antecedents of petitioners possibility of petitioners fleeing from justice and impact of granting or rejecting the Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …20… bail on society as well as petitioner are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. It is not possible to visualize all factors and enlist them as every case is to be decided in its peculiar facts and circumstances. 31. In present case Officer present in Court had submitted that records from three Banks have been taken into possession during investigation and petitioner has been interrogated and statements of witnesses including statement of the petitioner recorded during investigation have also been produced in the Court. 32. It is also a fact noticed during hearing of the petition that there are other several accounts of students which were not opened by the petitioner but through by other Officer(s) but none of them have been treated as accused and only petitioner has been implicated as an accused. It is yet to be assessed as to whether petitioner is an accused or an easy prey of conspirators for having acquaintance with them or otherwise. 33. Petitioner is serving as a Senior Manager in the Bank and there is no possibility of his fleeing from justice. It is also stated which is not disputed that after 3rd March Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …21… 2021 petitioner was never called for interrogation and therefore has not been associated in investigation thereafter. Statements of witnesses belonging to the Banks have been recorded and relevant documents have been taken in custody by the Investigating Agency and there is nothing on record so as to construe that custodial interrogation of petitioner is required at this stage. 34. It is canvassed on behalf of the petitioner that co accused main conspirator in the case Babita Rajta has been enlarged on bail by a Co ordinate Bench of this Court vide order dated 26.3.2021 passed in Cr.M.P.(M) No.3621 and therefore right of petitioner for enlarging him on bail on the ground of parity has also been pressed. Co accused may be main accused Babita Rajta has been enlarged on bail in a petition filed under Section 439 Cr.P.C. as she was in judicial custody. There may not be any relation with the parameters taken into consideration for granting bail under Section 439 Cr.P.C. with the parameters relevant for considering bail application under Section 438 Cr.P.C. There may be common factors but the factors are always not the same. However in absence of established necessity of custodial interrogation it may be relevant to some extent sometimes but not always. Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …22… 35. Considering the cumulative effect of entire circumstances of present case and relevant factors and parameters referred supra I find that balance of convenience lies in favour of granting bail to the petitioner. 36. Accordingly the petitioner is ordered to be enlarged on bail on his furnishing personal bond in the sum of `2 00 000 with two sureties each in the sum of `1 00 000 to the satisfaction of the trial Court Special Judge within two weeks from today subject to the following conditions and upon such further conditions as may be deemed fit and proper by the trial Court Special Judge: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 nay police office or tamper with the evidence. 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 he is accused or suspected. Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …23…That the petitioner shall not misuse his liberty in any manner. That the petitioner shall not jump over the bail. That in case petitioner indulges in repetition of similar offence(s) then his bail shall be liable to be cancelled on taking appropriate steps by prosecution. That the petitioner shall not leave the territory of India without prior permission. 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. 37. 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 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. 38. In case the petitioner violates any condition imposed upon him his bail shall be liable to the cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 39. Trial Court Special Judge is directed to comply with the directions issued by the High Court vide Hig h C o urt of H.P on 03 04 HCHP CRMPM No.3221 …24… communication No.HHC.VIG. Misc.Insutructions 93 IV.7139 dated 18.3.2013. 40. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the present bail application. 41. Petition is disposed of in the aforesaid terms. 42. Copy dasti. 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. April 1 2021(sd) Judge.

Swaraj Abhiyan (V) V. Union of India & Others

Basic right to food and nutrition is an obligation on the part of government The Writ Petition No. 857 of 2015 was filed by the appellant regarding the problematic implementation of National Food Security Act, 2013 with the view that welfare legislation should be implemented. Initially the National Food Security Ordinance, 2013 was promulgated by the President on 5th July, 2013. Thereafter, the National Food Security Bill, 2013 was introduced in Parliament with, amongst others with the objectives such as establishing a multi-faceted grievance mechanism including a District Magistrate Reversal Officer, provisions for State Food Commissions, welfare schemes and so on.The National Food Security Bill was passed by both Houses of Parliament and received the assent of the President on 10th September, 2013 but the authorities and bodies mandated to be set up under the National Food Security Act, 2013 (for short ‘the NFS Act’) had not been made functional in some States even after four years. This was despite the fact that Section 14 of the NFS Act requires that “Every State Government shall put in place an internal grievance redressal mechanism.On 1st December, 2016 the learned Attorney General informed the Supreme Court that the Secretary in the Ministry of Food and Public Distribution pursuant to an order passed by us on 28th October, 2016 held a meeting on 9th November, 2016 regarding the procedures and setting up of commissions on state level.During the matter was taken up on 22nd March, 2017 the court noted that provisions of the NFS Act had not been faithfully and sincerely implemented by the State Governments before us. With regard to the implementation of Section 16 of the NFS Act it observed that the State Food Commission had not yet been appointed. The court noted that many State Governments had appointed the Consumer Redressal Commission constituted under the Consumer Protection Act, 1986 as the State Food Commission.Still, many of the states had not implemented the commission which was the background of the present writ petition. ISSUE BEFORE THE COURT:What can the Government of India do to require the State Governments and Union Territories to make functional those bodies and authorities that are mandated by a law passed by Parliament (such as the National Food Security Act, 2013)?What remedy does a citizen of India have if the Government of India does not issue such a direction and the State Government or the Union Territory does not implement a law passed by Parliament? RATIO OF THE COURT:The court observed that Model Rules circulated by the Central Government needed serious considerations by the State Governments involved as by other State Governments and Union Territories. It also opined that the Central Government, the grievance redressal machinery should be independent and its functioning should be transparent. As long as this is achieved, it hardly matters that some officer of the government is appointed as the District Grievance Redressal Officer.In the court’s view it was appropriate if an officer dealing with delivery of entitlements under the NFS Act was not appointed or designated as the District Grievance Redressal Officer since he or she might not be able to entertain a complaint against his or her own functioning. The court found it very apathetic on the part of the governments that many of the State Governments have not yet established a working State Food Commission, this is a clear indication that there is hardly any commitment to the implementation of the NFS Act.The court referred to the letter dated 14th March, 2017 where it had been mentioned that the States and Union Territories intending to designate any existing statutory commission to function as the State Food Commission should ensure that the provisions of Section 16 of the NFS Act are complied with. The court opined that while it was theoretically possible to have a statutory commission or body function as a State Food Commission, provided that statutory commission or body is constituted and established in accordance with the provisions of Section 16 of the NFS Act, there might be several practical difficulties in the actual working of one statutory commission performing two disparate functions under two different statutes.This could compromise the efficiency of that statutory commission or body with the result that the beneficiaries of the multifarious functions of the statutory commission or body would suffer at both ends. This in turn would reduce the importance of a basic right to wholesome and nutritious food particularly for women and children which was really the objective of the NFS Act.The court held that importance of the State Food Commission cannot be minimized by the State Government if the NFS Act is to be faithfully implemented. It also observed by a reading of affidavit filed by the Haryana govt. that there was hardly any work for state commissions and stated that this attitude would defeat the whole purpose of the Act.The court referred to the draft Report of the Working Group on Developing Social Audit Standards which had been accepted by the Central govt. and the CAG and audits according to which were being carried out and held that requirement of a social audit is undoubtedly salutary and since it had been accepted by the Central Government as well as by the Comptroller and Auditor General of India, there was no reason why it should not be put in place in so far as the NFS Act is concerned, particularly since a social audit is mandated Under Section 28 of the NFS Act.The court also put the responsibility on the states for not appointing Vigilance Commissions. It also held that it was not necessary to appoint any Food Commissioner or Ombudsman to oversee the functioning and implementation of the NFS Act since it was more important that each State Government and Union Territory realize and appreciate their statutory and constitutional obligations and ensure that the will of Parliament which enacted the National Food Security Act, 2013 was given full effect to in letter and spirit.It concluded that the NFS Act had clearly not been implemented by some states and issued directions accordingly. DECISION HELD BY COURT:The Secretary in the Ministry of Consumer Affairs, Food and Public Distribution of the Government of India should convene one or more meetings on or before 31st August, 2017 of the concerned Secretaries of all the State Governments and Union Territories to take stock of the implementation of the NFS Act and brainstorm over finding ways and means to effectively implement the provisions of the NFS Act in letter and spirit. A law enacted by Parliament as a part of its social justice obligation must be given its due respect and must be implemented faithfully and sincerely and positively before the end of this year.The Secretary in the Ministry of Consumer Affairs, Food and Public Distribution of the Government of India should emphatically request and commend to every State Government and Union Territory to notify appropriate Rules for a Grievance Redressal Mechanism under the provisions of the NFS Act and designate appropriate and independent officials as the District Grievance Redressal Officer within a fixed time frame and in any case within this year. Adequate publicity should be given to the appointment and designation of District Grievance Redressal Officers so that any aggrieved person can approach them without any fear and with the expectation that the grievance will be redressed.The Secretary in the Ministry of Consumer Affairs, Food and Public Distribution of the Government of India will emphatically request and commend to the State Governments and Union Territories to constitute, establish and make fully functional a State Food Commission under the provisions of the NFS Act before the end of the year. The NFS Act specifies a very large number of functions that a State Food Commission is required to perform-there is no dearth of work for the State Food Commission. Therefore the said Secretary should require the Chief Secretary to ensure that adequate arrangements are made by each State Government and Union Territory to provide adequate infrastructure, staff and other facilities for the meaningful functioning of the State Food Commission including preparation of annual reports required to be laid before the State Legislature. In our opinion, it would not be appropriate for reasons that we have already indicated to appoint another statutory commission or body to function as the State Food Commission unless it is absolutely necessary and completely unavoidable and only as a last resort. The Secretary in the Ministry of Consumer Affairs, Food and Public Distribution of the Government of India will emphatically commend and request every State Government and Union Territory to constitute and establish a functioning Vigilance Committee in terms of Section 29 of the NFS Act before the end of the year for the purposes of carrying out the duties and responsibilities mentioned in that Section.The Secretary in the Ministry of Consumer Affairs, Food and Public Distribution of the Government of India will ensure that the social audit machinery postulated by Section 28 of the NFS Act and which is already in place in so far as the MGNREG Act is concerned is established at the earliest with appropriate modifications to enable every State Government and Union Territory so that a periodic social audit is conducted and the NFS Act is purposefully implemented for the benefit of the people. MINORITY DISSENT:Hon’ble Justice N.V Ramana in his dissenting opinion stated that the pathetic implementation of the NFS Act was a result of discrepancies on several levels and opined that the problem required a coordination between both the Central and the state governments. He stated that the Union govt. had full powers to Act accordingly in the matter and further opined that a balance is needed to be struck between the Central and the State levels in order to bolster the ethos of federalism as well for which he relied upon Jindal Stainless Steel v. State of Haryana AIR 2016 SC 5617.

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO. 857 OF 2015 Swaraj Abhiyan The answer to this is provided in Article 256 of our Constitution perhaps a forgotten provision which reads as follows W.P.No. 8515 “256. Obligation of States and the Union The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for In other words the Government of India cannot plead helplessness in requiring State Governments to implement parliamentary laws Another question that arises is : What remedy does a citizen of India have if the Government of India does not issue such a direction and the State Government or the Union Territory does not implement a law passed by Parliament These two questions arise in the context of the seriousness with which the National Food Security Act 2016 a welfare legislation is and should be implemented Initially the National Food Security Ordinance 2013 was promulgated by the President on 5th July 2013. Thereafter the National Food Security Bill 2013 was introduced in Parliament with amongst others the following objectives “(k) impose obligation upon the State Governments to put in place an internal grievance redressal mechanism which may include call centers help lines designation of nodal officers or such other mechanism as may be prescribed by the respective Governments and for expeditious and effective redressal of grievances of the aggrieved person in matters relating W.P.No. 8515 to distribution of entitled foodgrains or meals under Chapter II of the proposed legislation a District Grievance Redressal Officer with requisite staff to be appointed by the State Government for each District to enforce these entitlements and investigate and redress grievances l) make provision for State Food Commission to be constituted by every State Government for the purpose of monitoring and review of implementation of the proposed legislation conduct or cause to be conducted by every local authority or any other authority or body as may be authorized by the State Government periodic social audits on the functioning of fair price shops. Targeted Public Distribution System and other welfare schemes and cause to publicise its findings and take necessary action in such manner as may be prescribed by the State Government ” The National Food Security Bill was passed by both Houses of Parliament and received the assent of the President on 10 th September 2013. Almost four years have gone by but the authorities and bodies mandated to be set up under the National Food Security Act 2013have not yet been made functional in some States. This is despite the fact that Section 14 of the NFS Act requires that “Every State shall put in place an internal grievance redressal Similarly Section 15 of the NFS Act provides that “The State Government shall appoint or designate for each district an officer to be the District Grievance Redressal Officer…..” W.P.No. 8515 6. Section 16 of the NFS Act provides that “Every State Government shall by notification constitute a State Food Commission ..” Section 28 of the NFS Act provides that “Every local authority or any other authority or body as may be authorized by the State Government shall conduct or cause to be conducted periodic social audits ” Similarly Section 29 of the NFS Act provides that “For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system every State Government shall set up Vigilance Committees ” The provisions in the NFS Act mentioned above are mandatory and yet almost four years down the line they have not been fully implemented by some States. 10. Food security is undoubtedly extremely important and as observed by this Court in People’s Union for Civil Libertiesv. Union of India and ors.1 “Mere schemes without any implementation are of no use.” Similarly one may ask what use is a law passed by Parliament if State Governments and Union Territories do not implement it at all let alone implement it in letter and spirit. 12 SCC 688 W.P.No. 8515 11. These questions have been troubling us since this matter was listed on 24th October 2016 subsequent to our order dated 13th May 2016 in Swaraj AbhiyanNo. 8515 a District Grievance Redressal Officer. However since those very officers were in charge of implementation of the NFS Act designating them as District Grievance Redressal Officers to whom grievances could be addressed against them did not serve any purpose at all. We suggested to the learned Attorney General that since the States before us did not seem to be fully on board with regard to the implementation of a law enacted by Parliament an extremely unfortunate situation had arisen. To get over this stalemate created by the State Governments it might be appropriate for the Central Government to consider framing Model Rules under Section 15 of the NFS Act so that it would make things easier for the State Governments and also give some teeth to the law enacted by Parliament 15. In so far as Section 16 of the NFS Act is concerned this mandates the State Government to constitute a State Food Commission for the purpose of monitoring and review of implementation of the NFS Act 16. We were informed that some of the State Governments had appointed the Consumer Disputes Redressal Commission constituted under the provisions of the Consumer Protection Act 1986 as the State Food Commission under Section 16 of the NFS Act. We were of the view that this was unsatisfactory and not in consonance with the provisions of the law W.P.No. 8515 particularly the letter and spirit of the NFS Act. We therefore suggested to the learned Attorney General to frame Model Rules under Section 16 of the NFS Act also for the reasons mentioned above 17. On 1st December 2016 the learned Attorney General informed us that the Secretary in the Ministry of Food and Public Distribution pursuant to an order passed by us on 28th October 2016 held a meeting on 9th November 2016. The Minutes of that meeting were placed before us. Paragraph 6 of the Minutes state inter alia as follows “...... As regards SFC she stated that ideally State Governments should set up independent Commission as per provisions of the Act and make Rules prescribing method and terms & conditions of appointment of Chairperson and Members of the Commission its powers procedures and periodicity of its meetingprocedure for hearing appeals and timelines for their disposal. However the Act also provides flexibility to State Governments for designating some existing Commission to act as SFC and many States have opted for this flexibility. In such scenario also State Government should frame Rules to be followed by the designated Commissions in its role as SFC. Further Chairman and such Memberof the designated Commission who will specifically perform the functions of SFC should be clearly indicated and such Commission should be provided additional staff to handle the additional work.” It was noted that the NFS Act provides some flexibility to the State Governments in designating an existing Commission to act as the State Food Commission. It was noted that many of the State Governments had W.P.No. 8515 opted for this flexibility. We expressed the view that while flexibility was certainly provided by the NFS Act the constitution of the State Food Commission must nevertheless meet the requirements of the law and its members must meet the eligibility criteria. In other words it is not as if any statutory body or authority could be given additional charge as a State Food Commission even though the members of that statutory body or authority did not meet the requirements of Section 16 of the NFS Act 19. We also expressed the view that it would be more appropriate if a State Food Commission is constituted under Section 16 of the Act with the necessary expertise and qualifications to function as such. We expressed the view that it would be appropriate if the State Food Commission is constituted at the earliest 20. Unfortunately our expectations were belied in as much as when this matter was taken up on 22nd March 2017 we noted with regret that generally speaking the provisions of the NFS Act had not been faithfully and sincerely implemented by the State Governments before us. With regard to the implementation of Section 16 of the NFS Act we were informed that the State Food Commission had not yet been appointed. We noted that on an earlier occasion we were informed that many State W.P.No. 8515 Governments had appointed the Consumer Redressal Commission constituted under the Consumer Protection Act 1986 as the State Food Commission under Section 16 of the NFS Act. We had heard the learned Attorney General in this regard and had expressed the view that giving “additional charge” to the Consumer Disputes Redressal Commission to function as the State Food Commission under Section 16 of the NFS Act appeared incongruous. This is because the qualifications required for both the bodies were quite different but that apart we found it odd that the Consumer Disputes Redressal Commission which performs judicial or quasi judicial functions should be asked to perform administrative and quasi judicial functions as a State Food Commission under the NFS Act 21. We drew attention to our order dated 24th October 2016 and the fact that we had heard the learned Attorney General and the learned Additional Solicitor General and learned counsel for the States before we had passed the order on 24th October 2016 22. We were informed during the course of hearing on 22nd March 2017 that many of the State Governments have in fact framed the necessary rules and that the Central Government had also prepared Model Rules and circulated them to the State Governments. Notwithstanding this and even W.P.No. 8515 though considerable time had elapsed a State Food Commission has not yet been constituted in the following States 1. Madhya Pradesh 3. Andhra Pradesh 23. As far as the State of Haryana is concerned we were informed that although the State Food Commission had been constituted it had not been provided with any infrastructure office space or budget and it was apparently requested not to perform any function with the result that it was compelled to approach the Punjab and Haryana High Court for relief 24. Since it appeared that the State Governments were not at all inclined to implement the provisions of a law enacted by Parliament for the benefit W.P.No. 8515 of the people of the country we were compelled and constrained to require the presence of the Chief Secretaries of the above mentioned States to inform us whether the law passed by Parliament is intended to be implemented by the State Governments or not. We also required the concerned Chief Secretaries to ensure the appointment of the State Food Commission in accordance with the provisions of the Act assuming the State Governments would be willing to implement the law enacted by Parliament. We also required details of the appointment of independent District Grievance Redressal Officers under Section 15 of the NFS Act that is to say persons independent of those against whom complaints are made and persons who are not subordinate to the officers against whom complaints are made. We further required the concerned Chief Secretaries to inform us whether any social audit had been conducted under the provisions of Section 28 of the Act which reads as follows: “Conduct of social audit Every local authority or any other authority or body as may be authorized by the State Government shall conduct or cause to be conducted periodic social audits on the functioning or fair price shops Targeted Public Distribution System and other welfare schemes and cause to publicise its findings and take necessary action in such manner as may be prescribed by the 2) The Central Government may if it considers necessary conduct or cause to be conducted social audit through independent agencies having experience in conduct of such audits.” W.P.No. 8515 25. On 26th April 2017 most of the Chief Secretaries appeared in Court and some had genuine reasons for not appearing. On our asking we were informed about the constitution establishment and appointment of the State Food Commission as follows 1. Madhya Pradesh Appointments not made 2. Andhra Pradesh Appointments not made 3. Telangana Appointments made 4. Maharashtra Appointments made but no member belonging to any Scheduled Caste or Scheduled Tribe has been appointed 5. Gujarat Appointments made 6. Jharkhand Appointments made 7. Bihar Appointments made but there are still two vacancies 8. Chhattisgarh Appointments made 9. Karnataka Constituted and established. However the affidavit of the Chief Secretary states that appointments have not yet been made 10. Haryana Matter is pending in the Punjab and Haryana High 26. This compliance with the NFS Act is pathetic to say the least and it is in this background that we are required to consider this case It was submitted by learned counsel for the petitioner that in so far as the appointment of a District Grievance Redressal Officer is concerned an independent person should be appointed and not the District Collector or the Deputy Commissioner of the district. The reason advanced by learned W.P.No. 8515 counsel was that these officers are already extremely busy they may not be able to address the grievance of the people within their district and are directly concerned with the implementation of the NFS Act. As such they might not be independent enough to deal with the grievances In this context our attention was drawn to a letter dated 14 th March 2017 sent by the Economic Advisor in the Ministry of Consumer Affairs Food and Public Distribution addressed to the Principal Secretary Secretary Department of Food and Civil Supplies of all the States and Union Territories. In this letter attention was drawn to the necessity of establishing a Grievance Redressal Mechanism under the NFS Act and the draft Model Rules circulated on 21st November 2016. A request was made to keep the directions issued by this Court in mind while framing the rules which could differ from the draft Model Rules prepared by the Central Government. For guidance a copy of the rules notified by the State Government of Tripura were enclosed In the letter it was stated inter alia as follows: “4. While taking further action tonotify rules on GRMappoint DGRO andconstitute State Food Commission following may be kept in view a) In order to maintain transparency and independence of the grievance redressal machinery it must be ensured that no officer of the W.P.No. 8515 Government dealing with delivery of entitlements under the Act is designated appointed as DGRO b) The States UTs which have already designated an existing statutory commission to function as State Food Commission should review the matter to ensure that its constitution is in accordance with the provisions of Section 16 of the Act c) The States UTs intending to designate any existing statutory commission to function as State Food Commission should ensure that as mandated by Hon’ble Supreme Court the constitution of existing commission is in accordance with the provisions of Section 16 of the d) Keeping in view the State specific requirements and the broad provisions of Model Rules on GRM the State Governments UT Administrations may finalize their own Rules and notify the same in consultation with the State Legal Department and in accordance with the provisions of Section 40 of the Act.” In our view the draft Model Rules circulated by the Central Government need serious consideration by the State Governments before us as well as by other State Governments and Union Territories. As advised by the Central Government the grievance redressal machinery should be independent and its functioning should be transparent. As long as this is achieved it hardly matters that some officer of the government is appointed as the District Grievance Redressal Officer. However as emphasized in the letter dated 14th March 2017 it would be appropriate if an officer dealing with delivery of entitlements under the NFS Act is not appointed or designated as the District Grievance Redressal Officer since he or she might not be able to entertain a complaint against his or her own functioning. In W.P.No. 8515 view of the circulation of the draft Model Rules it is now really up to the Central Government and the Governments of the States and Union Territories to ensure that a transparent and accountable Grievance Redressal Mechanism is put in place through notified rules so that the advantages of the NFS Act can be passed on to those who need the benefit of this social 31. With regard to the constitution and establishment of the State Food Commission it was submitted by learned counsel for the petitioner that it is unfortunate that even though the NFS Act has been in force for about four years only a few of the State Governments before us had taken its provisions seriously. It is a pity that legislation enacted by Parliament for the benefit of the people should be kept on the backburner by some of the State Governments before us. It was submitted that this apathy is all pervasive and there are other State Governments and Union Territories that have not taken the provisions of the NFS Act seriously enough for their 32. We are in general agreement with learned counsel for the petitioner and the fact that even after prodding by the Central Government and our prodding many of the State Governments have not yet established a W.P.No. 8515 working State Food Commission this is a clear indication that there is hardly any commitment to the implementation of the NFS Act In the letter dated 14th March 2017 referred to above it has been mentioned that the States and Union Territories intending to designate any existing statutory commission to function as the State Food Commission should ensure that the provisions of Section 16 of the NFS Act are complied with. In our opinion while it is theoretically possible to have a statutory commission or body function as a State Food Commission provided that statutory commission or body is constituted and established in accordance with the provisions of Section 16 of the NFS Act there might be several practical difficulties in the actual working of one statutory commission performing two disparate functions under two different statutes. This is more than likely to compromise the efficiency of that statutory commission or body with the result that the beneficiaries of the multifarious functions of the statutory commission or body would suffer at both ends. This is hardly conducive to good administration and reduces the importance of a basic right to wholesome and nutritious food particularly for women and children which is really the objective of the NFS Act. W.P.No. 8515 34. The importance of the State Food Commission cannot be minimized by the State Government if the NFS Act is to be faithfully implemented. In this regard we are pained to read in the affidavit filed by the State of Haryana that there is hardly any work for the State Food Commission With such an attitude it is very unlikely that any progress will ever be made either by the State of Haryana or the State Food Commission in Haryana in the matter of food security. One can only feel sorry for the people in In so far as conducting a social audit is concerned this is provided for in Section 28 of the NFS Act and was strongly recommended by learned counsel for the petitioner It was pointed out by learned counsel and there was general agreement with his submission on behalf of the Central Government that the draft Report of the Working Group on Developing Social Audit Standards which has been accepted by the Central Government should be implemented with necessary modifications in so far as the NFS Act is concerned. The reason for the modifications is that the Working Group had prepared its Report and developed the protocol for conducting a social audit in consultation with the Comptroller and Auditor General of India in the W.P.No. 8515 context of the Mahatma Gandhi National Rural Employment Guarantee Act 2005Act 1971 read with provisions of Section 24 of the MGNREG Act 2005.” 37. The social audit standards have been framed with the support of certain fundamental principles as is apparent from paragraph 1.6 of the draft Report which reads as follows: “These social audit standards have been framed with the support provided by the fundamental principles of Public Sector Auditingand the operational guidelines for coordination and cooperation between SAIs and internal auditors in the public sector issued by INTOSAI. The national legal framework has been borne in mind especially taking into account provisions of MGNREG Act 2005 MGNREG Audit of Scheme Rules 2011 Local Fund Audit Acts of the State Governments and CAG’s Act 1971 along with the Regulations 2007 notified by CAG.” W.P.No. 8515 38. The draft Report is exhaustive and we were informed that it has been accepted by the Central Government and social audits under the MGNREG Act are being conducted in accordance with the guidelines laid down as well as the statutory rules framed under the provisions of the MGNREG Act. The requirement of a social audit is undoubtedly salutary and since it has been accepted by the Central Government as well as by the Comptroller and Auditor General of India we see no reason why it should not be put in place in so far as the NFS Act is concerned particularly since a social audit is mandated under Section 28 of the NFS Act It was brought to our notice by learned counsel for the petitioner that Section 29 of the NFS Act requires setting up of Vigilance Committees for ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system Section 29 of the NFS Act reads as follows: “Setting up of Vigilance Committees For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system every State Government shall set up Vigilance Committees as specified in the Public Distribution SystemOrder 2001 made under the Essential Commodities Act 1955as amended from time to time at the State District Block and fair price shop levels consisting of such persons as may be prescribed by the State Government giving due representation to the local authorities the Scheduled Castes the Scheduled Tribes women and destitute persons or persons with disability W.P.No. 8515 The Vigilance Committees shall perform the following functions a) regularly supervise the implementation of all schemes under this Act b) inform the District Grievance Redressal Officer in writing of any violation of the provisions of this Act and c) inform the District Grievance Redressal Officer in writing of any malpractice or misappropriation of funds found by it.” There can hardly be any doubt that there is a necessity to set up Vigilance Committees under the NFS Act and the fact that they have not been set up in spite of the passage of four years after the enactment of the NFS Act is yet another indication of the lack of the concern shown by the State Governments and the Union Territories to respect a law enacted by 41. Learned counsel for the petitioner insisted that we appoint Food Commissioners or Ombudsman who would oversee the functioning and implementation of the NFS Act since the State Governments before us and indeed other State Governments and Union Territories were not implementing the provisions of the NFS Act. For the present we are not inclined to appoint any Food Commissioner or Ombudsman to oversee the functioning and implementation of the NFS Act. In our opinion it is more important that each State Government and Union Territory realizes and W.P.No. 8515 appreciates their statutory and constitutional obligations and ensures that the will of Parliament which enacted the National Food Security Act 2013 is given full effect to in letter and spirit. If the State Governments and Union Territories decide that they do not wish to abide by a law enacted by Parliament for the benefit of the people perhaps some other solution may have to be found but we hope that no State Government or Union Territory disregards the will of Parliament In view of our discussion above it is quite clear that the NFS Act a social justice and social welfare legislation is not being implemented as it should be. That is the bane of our society and therefore in keeping with our constitutional obligation we are of opinion that the following directions need to be issued for the effective implementation of the National Food Security Act 2013 1. The Secretary in the Ministry of Consumer Affairs Food and Public Distribution of the Government of India should convene one or more meetings on or before 31st August 2017 of the concerned Secretaries of all the State Governments and Union Territories to take stock of the implementation of the NFS Act and brainstorm over finding ways and means to effectively implement the provisions of the NFS Act in letter W.P.No. 8515 and spirit. A law enacted by Parliament as a part of its social justice obligation must be given its due respect and must be implemented faithfully and sincerely and positively before the end of this year 2. The Secretary in the Ministry of Consumer Affairs Food and Public Distribution of the Government of India should emphatically request and commend to every State Government and Union Territory to notify appropriate rules for a Grievance Redressal Mechanism under the provisions of the NFS Act and designate appropriate and independent officials as the District Grievance Redressal Officer within a fixed time frame and in any case within this year. Adequate publicity should be given to the appointment and designation of District Grievance Redressal Officers so that any aggrieved person can approach them without any fear and with the expectation that the grievance will be 3. The Secretary in the Ministry of Consumer Affairs Food and Public Distribution of the Government of India will emphatically request and commend to the State Governments and Union Territories to constitute establish and make fully functional a State Food Commission under the provisions of the NFS Act before the end of the year. The NFS Act specifies a very large number of functions that a State Food Commission W.P.No. 8515 is required to perform there is no dearth of work for the State Food Commission. Therefore the said Secretary should require the Chief Secretary to ensure that adequate arrangements are made by each State Government and Union Territory to provide adequate infrastructure staff and other facilities for the meaningful functioning of the State Food Commission including preparation of annual reports required to be laid before the State Legislature. In our opinion it would not be appropriate for reasons that we have already indicated to appoint another statutory commission or body to function as the State Food Commission unless it is absolutely necessary and completely unavoidable and only as a last 4. The Secretary in the Ministry of Consumer Affairs Food and Public Distribution of the Government of India will emphatically commend and request every State Government and Union Territory to constitute and establish a functioning Vigilance Committee in terms of Section 29 of the NFS Act before the end of the year for the purposes of carrying out the duties and responsibilities mentioned in that Section The Secretary in the Ministry of Consumer Affairs Food and Public Distribution of the Government of India will ensure that the social audit machinery postulated by Section 28 of the NFS Act and which is already W.P.No. 8515 in place in so far as the MGNREGA Act is concerned is established at the earliest with appropriate modifications to enable every State Government and Union Territory so that a periodic social audit is conducted and the NFS Act is purposefully implemented for the benefit of the people July 21 2017 New Delhi W.P.No. 8515 JUDGMENT W.P.No. 8515 text and law in action therefore what concerns us in this case is the implementation of National Food Security Act W.P.No. 8515 W.P.No. 8515 Act 2013 vide G.O.MS No. 6 Consumer Affairs Security Rules 2015 cadre) PR& RD Dept. as time give such directions as it may consider 2 Swaraj Abhiyanv. Union of India and otr. AIR 2016 SC 2953 3 AIR 2016 SC 5617 created a unique federal structure which cannot be abridged in a sentence or two The nature of our federalism can only be all the provisions of the Constitution co­equals in the Indian federal structure Deshmukh Shri T. T. Krishnamachari and Hon’ble Dr. B. R. Ambedkar before the Constituent Assembly. Common philosophy which runs through our Constitution is that preserve our unique federation with clear are unique and quite different from other Countries like United States of America etc our makers. Amphibious nature of our federalism has been even noted by the Sarkaria Commission Report on Center­State abstracted from the wisdom of working The principle of federalism as present in India cannot be the each and every provision of the Constitution would inevitably point that India has divided sovereignty in the power house is independent in its own terms. The constitutional scheme invariably leads to the conclusion levels to achieve the cherished constitutional goal of co­ It is to be noted that our Constitutional set­up mandates enforcing such important legislations more so when such appear before us. I am of the opinion that for now a meaningful dialogue between the Center and the State a combined effort both by Center and States needs to be taken for effective implementation of the Act especially in

Unless there was any degree of penetration, no offence under Section 376 IPC can be made out: Sikkim High Court

Penetration is a key component of the offence under Section 375, which is punishable under Section 376 of the Indian Penal Code, which is completely absent in this case. Without some level of penetration, no offence under Section 376 IPC can be established. It would not bring the appellant’s crime within the four corners of Section 375 of the Penal Code if there was no penetration to any extent. The judgment was passed by The High of Court Sikkim in the case of Mikal Bhujel alias Rubeen vs the State of Sikkim. [Crl. A. No. 31 of 2018] by Single Bench consisting of Hon’ble Shri Justice Jitendra Kumar Maheshwari. The Facts of the case are that the complaint was submitted by the minor victim. she revealed that Jeewan Bhujel of the same locality had sexually assaulted her on so many occasions. Police Station registered FIR under Section 376 of the IPC, 1860, with Section 6 of the POCSO Act. The victim gave birth to a boy child. Thereafter, the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. samples revealed that Jeewan is the biological father and the victim is the biological mother. Learned Counsel on behalf of the appellant, has contended that in the FIR lodged by the mother of the victim on enquiring her, the name of the appellant has not been mentioned. Therefore, initially, the offence was registered only against Jeewan Bhujel. The victim, in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It is urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape/sexual assault has not been alleged but, in the Court statement, only the allegation of sexual assault indicating the incident has been alleged. Learned Counsel on the corollary, contends that as per the allegation alleged by the prosecutrix, the Trial Court has considered the testimony of the prosecutrix which remains withstand to the allegation and there is no cross-examination of those allegations, therefore, the testimony of the victim has been rightly relied upon. The Trial Court has rightly convicted the appellant under Section 3, i.e., penetrative sexual assault, although the charge was under Section 5, i.e., aggravated penetrative sexual assault. The Court relying on Apex Court in the case of Tarkeshwar Sahu vs. the State of Bihar. Wherein it was held that “the important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. Because of the Explanation to Section 375, mere penetration of the penis in the vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.”

IN THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) Crl. A. No. 318 Mikal Bhujel alias Rubeen Son of Jeewan Bhujel alias Joh Permanent Resident of ‘CG’ ‘R’ East Sikkim. State of Sikkim. … Respondent HON’BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI CJ. For the Appellant For the Respondent Date of hearing Date of judgment Mr. B. Sharma Sr. Advocate Mr. B.N. Sharma Advocate Mr. Safal Sharma Advocate Ms. Pema Bhutia Asst. Public Prosecutor. 03.04.2021 & 05.04.2021 This appeal has been filed under Section 374 of the Code of Criminal Procedure 1973 hereinafter referred to as “Cr. P.C.” by the accused appellant Mikal Bhujel @ Rubeen challenging the judgment dated 21.08.2018 and the findings of conviction recorded in S.T.Case No.14 of 2016 by the learned Special Judge Protection of Children from Sexual Offences Act 2012 hereinafter referred to as “POCSO Act”. The sentence awarded on 22.08.2018 directing the accused to undergo 7 years Rigorous Imprisonment has also been assailed with fine of Rs.5 000 in default three months Rigorous Imprisonment. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim The case of the prosecution in brief is that on 25.05.2016 at 13.30 hrs. a written complaint was submitted by the mother of the minor victim to Rhenock Police Station. It is alleged that on complaining stomach ache by the victim she consulted the Doctor and found that her minor daughter is pregnant. On enquiring with the victim she revealed that one Jeewan Bhujel @ John of the same locality had sexually assaulted her on so many occasions since the year 2014. On receiving the complaint of mother of victim Rhenock Police Station registered FIR No. 04 2016 on the same date i.e. 25.05.2016 against Jeewan Bhujel @ John under Section 376 of the Indian Penal Code 1860 hereinafter referred to as “IPC” read with Section 6 of the POCSO Act. Thereafter it was endorsed for investigation to Sub Inspector Jigme W. Bhutia. On recording the statement of the victim under Section 161 of the Cr. P.C. it transpired that the son of the accused Jeewan Bhujel namely Mikal Bhujel @ Rubeen had also sexually assaulted her on 3 to 4 occasions therefore the appellant was also made accused. Accused persons and the victim were sent for medical examination to Rhenock PHC wherefrom she was referred to STNM Hospital Gangtok for further examination. The Investigating Officer seized the birth certificate of the victim from her stepfather in the presence of two independent witnesses. Both the accused persons were arrested thereafter sketch map was prepared. The victim was found pregnant as per the report of the Doctor of STNM Hospital. The radiological report as well the forensic report regarding pregnancy has also been obtained. The statement of the victim was recorded under Section 164 of the Cr. P.C. by the Judicial Magistrate East Sikkim. The seized articles were sent to the Forensic Science Laboratory Tripura. Intimation has also been given to the Member Secretary Sikkim Commission for Protection of Child Rights. With the aforesaid prima facie material the Investigating Officer closed the investigation and filed Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim charge sheet against both the accused persons Jeewan Bhujel @ John and Mikal Bhujel @ Rubeenunder Section 376 of the IPC read with Section 6 of the POCSO Act. The victim gave birth to a boy child on 07.01.2017. Thereafter the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. The DNA report has been received on 03.05.2017. As per the said report it was found that the accused no.1 Jeewan Bhujel @ John is the biological father and the victim is the biological mother of the newly born baby (ii) and of the POCSO Act. The accused persons have abjured their guilt and demanded trial. During trial the accused Jeewan Bhujel @ John has admitted his guilt of alleged sexual assault taking defence that it was with consent while the accused appellant Mikal Bhujel @ Rubeen has taken a defence of his false implication. The prosecution has examined as many as 14 witnesses to prove the charges levelled. In defence the appellant examined himself and his wife as a defence witness. Learned Trial Court after considering the evidence recorded the finding that the allegation of commission of rape to prove the charge under Section 5 of the POCSO Act i.e. aggravated penetrative sexual assault has been proved against Jeewan Bhujel @ John accused no.1 who was convicted and sentenced under Section 6 of the POCSO Act while the Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim accused appellant Mikal Bhujel @ Rubeen was found guilty of charge of penetrative sexual assault under Section 3 of the POCSO Act accordingly convicted and sentenced under Section 4 of the POCSO Act as described hereinabove. It is relevant to state that the accused Jeewan Bhujel @ John has not filed any appeal against the judgment of his conviction and sentence and the present appeal has been filed by the appellant Mikal Bhujel @ Rubeen only questioning the impugned judgment. 6. Mr. B. Sharma learned Senior Counsel appearing on behalf of the appellant has contended that in the FIR lodged by the mother of the victim on enquiring her the name of the appellant has not been mentioned. Therefore initially the offence was registered only against Jeewan Bhujel @ John. The victim in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It is urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape sexual assault has not been alleged but in the Court statement only the allegation of sexual assault indicating the incident has been alleged. The testimony of prosecutrix PW 1 and the case of prosecution cannot be relied upon in particular when the said allegation has not been supported by medical and forensic evidence collected against the appellant. It is also urged that if we see the statement of the prosecutrix under Sections 161 and 164 Cr. P.C. she said “chara garyo” to her while in the Court statement it is stated that she was sexually assaulted and it would not cause a commission of offence as per the judgment of this Court in the case of State of Sikkim vs. Sashidhar Sharma reported in SLR SIKKIM 717. It is also contended that as per DNA report the victim is the biological mother of the newly born baby boy and the co accused Jiwan Bhujel @ John is the biological father. Thus the allegation of rape as alleged did not find support from the DNA Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim report. It is urged that if this Court is of the opinion that the testimony of the victim is worthy to rely in such a case looking to her testimony the finding and conviction under Section 3 of the POCSO Act and the sentence under Section 4 of the POCSO Act are not tenable hardly it may be a case of Section 7 of the POCSO Act and punishment under Section 8 of the POCSO Act is specified. Therefore considering the alternative argument the finding and conviction may be set aside and the sentence may be reduced as per Section 8 of the POCSO Act. Per contra Ms. Pema Bhutia learned Assistant Public Prosecutor contends that as per the allegation alleged by the prosecutrix the Trial Court has considered the testimony of the prosecutrix which remain withstand to the allegation and there is no cross examination of those allegation therefore the testimony of the victim has been rightly relied upon. The story of commission of rape as alleged by the prosecutrix has been proved and the appellant as well as co accused both have been convicted though for separate charges believing the story of the prosecution relying the testimony of the prosecutrix. Therefore such findings do not warrant any interference. On the alternative contention it is urged that looking to the testimony of the prosecutrix the Trial Court has rightly convicted the appellant under Section 3 i.e. penetrative sexual assault although the charge was under Section 5 i.e. aggravated penetrative sexual assault. The said finding of fact is just to which interference in this appeal either on conviction or on sentence is not warranted. After hearing learned counsel for the parties and in the facts of the case while adverting the arguments so advanced the following two questions are posed for answer: Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim i) Whether the Trial Court committed an error in convicting the appellant relying upon the testimony of the prosecutrix warranting interference in this appeal ii) Whether the alternative argument of appellant counsel is having some force in the facts and circumstances of the case The said question can be answered on consideration of the allegation and the evidence brought to prove such allegation and the charges. As per the prosecution narration about 3 4 days after committing the rape by John Bhujel the appellant Rubeen Bhujel called the mother of the victim to send tobacco and surf buying from the shop asking the victim. It is further alleged that the appellant committed sexual assault 2 3 times. As per the testimony of the prosecutrix the mother told her that the appellant Rubeen Bhujel requested to ask her for buying some tobacco and surf from nearby shop and send to his residence. On instruction of the mother she bought tobacco and surf and reached to the residence of the appellant. He was alone at home and his family members had gone to the church. The appellant called her inside the room where he was watching Television. She had asked to sit down on the bed and the accused bolted the door. After forcibly pushing her on his bed the accused removed her apparels. The victim tried to free from the clutches of the accused but the accused prevented though she had screamed and cried for help. Thereafter the accused removed his clothes which he was wearing and committed sexual assault. On the basis of the said testimony it is clear that slight deviation from allegation was there in the Court statement with respect to committing sexual assault 2 3 times but the allegation of sexual assault is re stated by the said testimony and the said allegation remain withstand and there is no cross examine of it. Therefore the victim withstands to the allegation by her in ocular version. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim The counsel for the appellant contended that the name of his client has not been mentioned in the FIR lodged by the mother of the victim and later in her statement the allegation of commission of rape has been brought against him because the appellant refused to marry the victim those possibilities of false implication may be ruled out because her statement was recorded by the Investigating Officer on the same day as of lodging the FIR in which name of appellant with the allegation has come on record. In this regard the judgment of the Hon’ble Apex Court in the case of Kirender Sarkar & Ors. vs. State of Assam reported in AIR 2009 SC 2513 is relevant. By which it is clear that FIR is not supposed to be an encyclopedia on the entire evidence and cannot contain the minutest details of the events. The plea of impleading the person afterthought must be judged having regard to the entire factual scenario in each case. In this context on lodging FIR on 25.05.2016 the statement of the prosecutrix was recorded on the same day in the presence of the mother and father of the victim in which she levelled allegation of commission of rape against the appellant also. The SHO applied to the Magistrate for recording her statement under Section 164 Cr. P.C. on 26.05.2016 however the Magistrate gave the date for recording such statement on 14.06.2016. In the said statement allegation of “chara garyo” has been alleged and in the Court statement as narrated hereinabove the allegation of sexual assault has remained withstand therefore in the opinion of this Court if the mother of the victim has not specified the name of the accused appellant in FIR it does not give any benefit because at the earliest occasion when the statement of the victim was recorded by police on the same day the allegation against the appellant has been brought by her. In view of the above the testimony of the victim remains in ocular so Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim far as the sexual assault made by the appellant. Therefore the allegation of sexual assault by the appellant has been proved by the prosecution beyond reasonable doubt. It is not out of place to observe that in the present case there are two accused persons Accused No.1 Jeewan Bhujel father of the appellant has sexually abused the victim first. As per DNA report the baby boy born on 07.01.2017 the child is the biological son of the victim and Jeewan Bhujel @ John. Jeewan Bhujel @ John has not filed any appeal challenging the finding of conviction. Thus it can safely be said that the testimony of the victim cannot be doubted proving the allegation of prosecution with respect to rape. The sole testimony of the victim proving allegation of commission of rape is sufficient so far as it relates against the appellant is concerned. Therefore the finding of guilt recorded by the Trial Court does not warrant interference. 12. Now reverting to the alternative argument of the appellant that as per the testimony of the prosecutrix conviction under Section 3 of the POCSO Act is not in accordance with law required to be adverted to. In the present case charge has been framed against the appellant under Section 5 of the POCSO Act alleging aggravated penetrative sexual assault. The Trial Court had not convicted the appellant for the said charge but altered it to the lesser punishment under Section 3and 4 of the POCSO Act for penetrative sexual assault. In terms of the testimony of the prosecutrix if accepted on its face the arguments advanced is that such testimony may fall within the purview of the sexual assault as specified under Section 7 to which punishment thereto under Section 8 of the POCSO Act is prescribed. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim 13. The charge against the appellant was under Section 5 and therefore the relevant provision as required to be reproduced which reads as under: Aggravated penetrative sexual assault. xxxxxxx j) whoever commits penetrative sexual assault on a child which i) ii) iii) iv) physically incapacitates the child or causes the child to become mentally ill as defined under clauseof section 2 of the Mental Health Act 1987 or causes impairment of any kind so as to render the child unable to perform regular tasks temporarily or permanently in the case of female child makes the child pregnant as a consequence of sexual assault inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated or mentally ill to perform regular tasks causes death of the child or whoever commits penetrative sexual assault on the child more than l) once or repeatedly or” 14. Section 3 of the POCSO Act deals with penetrative sexual assault which is reproduced as thus: penetrative sexual assault" if Penetrative sexual assault. A person is said to commit a) b) d) he penetrates his penis to any extent into the vagina mouth urethra or anus of a child or makes the child to do so with him or any other person or he inserts to any extent any object or a part of the body not being the penis into the vagina the urethra or anus of the child or makes the child to do so with him or any other person or he manipulates any part of the body of the child so as to cause penetration into the vagina urethra anus or any part of body of the child or makes the child to do so with him or any other person or he applies his mouth to the penis vagina anus urethra of the child or makes the child to do so to such person or any other person.” The punishment for penetrative sexual assault has been prescribed under Section 4 of the POCSO Act. 15. Section 7 of the POCSO Act deals with sexual assault which is also relevant therefore reproduced as thus: Sexual assault. Whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The punishment for Section 7 has been prescribed under Section 8 of the POCSO Act. 16. On perusal of the aforesaid provisions it is clear that Section 5 applies for aggravated penetrative sexual assault but the said charge has not been found prove as per allegation and the testimony of the victim against the appellant. The Trial Court convicted for lesser charge of Section 3 and punished under Section 4 of the POCSO Act. On perusal thereto it is clear that in case a person commits a penetrative sexual assault by penetrating his penis to any extent into vagina mouth urethra or anus of a child or makes the child to do so vice a versa with him or any other person therefore by the evidence the element of penetration of penis to any extent into the vagina mouth urethra or anus is necessary. As per the testimony of the victim so far as it relates to the appellant is concerned it is said that when she entered into the room where the appellant was watching Television she was asked to sit on bed and he bolted the door. After pushing her forcibly he removed her apparels. Thereafter the accused removed his clothes that he was then wearing and committed sexual assault. As per the testimony of the Doctor or in the scientific report no evidence has been brought by the prosecution corroborating the said allegation against the appellant. Therefore looking to the said testimony the penetration of penis into vagina has not been proved except to alleging the sexual assault. In the said context if we see the aforesaid provision of Section 7 of the POCSO Act then it is clear that when a person with sexual intent does any other act which involves physical contact without penetration is said to commit sexual assault. Therefore to analyze the said testimony it is to be seen that what is the meaning of penetration of the penis. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim In the above context the judgment of the Hon’ble Supreme Court in the case of Aman Kumar & Another vs. State of Haryana reported in 2004) 4 SCC 379 is relevant. The Apex Court in the said case in paragraph 7 held as thus: “7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman no matter how littlev. High Court of Punjab and Haryana1 SCC 212 : 1979 SCC252] .] In rape cases if the gland of the male organ is covered by smegma it negatives the possibility of recent complete penetration. If the accused is not circumcised the existence of smegma around the corona gland is proof against penetration since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and therefore her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs state of hymen offers the most certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand sometimes the hymen may be more firm less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance but more than that in frequency are the injuries on labia majora. These viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows depending on the vigour and force used by the accused and counteracted by the victim. Further examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.” clue. While examining the hymen 18. The said judgment is based upon the judgment of State of U.P. vs. Babul Nath reported in 6 SCC 29 wherein the difference of sexual assault or indecent assault has been clarified observing that complete penetration is not essential even partial or slightest penetration Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim with or without emission of semen and rupture of hymen or even an attempt to penetration is sufficient as per medical jurisprudence. 19. The Apex Court in the case of Tarkeshwar Sahu vs. State of Bihar reported in 8 SCC 560 has observed and relevant portion of the judgment is reproduced as thus: “10. … The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely partially or slightly would be enough for the purpose of Section 375 and 376 IPC. ..” In order to constitute rape what Section 375 IPC requires is 13. medical evidence of penetration and this may occur and the hymen remain intact. In view of the Explanation to Section 375 mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC. In view of the catena of judgments of the Indian and English 21. Courts it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC.” 20. On perusal of the aforesaid it is clear that the basic ingredient to prove the charge of rape is the accomplishment of the act with force. The other ingredient is penetration of the male organ within the labia majora or the vulva or pudendum with or without any emission of semen or even an attempt at penetration into the private part of the victim completely partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. It is not out of place to observe here that all the aforesaid judgments are interpreting the provisions of Sections 375 and 376 of the IPC. The ingredients as specified for commission of rape under Section 375to IPC is similar to Section 3 to of the POCSO Act. If Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim those act has been committed in any of the seven descriptions as specified in the definition of rape in Section 375 IPC with the aid of Explanation one it would amounting to committing of rape to which punishment has been prescribed in Section 376 376 (a) to 376(b) 376(c) 376(d) and 376(e). It is to observe here that in Explanation of Section 375 IPC it is clarified that “vagina” shall also include “labia majora”. But in the POCSO Act no such explanation has been given with respect to “vagina” what it includes or not. In the said context the evidence of the victim has to be seen by which the offence of Section 3 would be made out or Section 7 of the POCSO Act. 22. But prior to see the said discussion the explanation of certain words describing male or female organs and its parts is essential. ‘Penetration’ means as used in the rule that penetration only is necessary to be proved on a trial for rape is a limitation upon and qualification of the meaning of the term ‘carnal knowledge’. In limiting the ‘carnal knowledge’ mentioned in the definition of ‘rape’ to ‘penetration’ only the Legislature intended to eliminate the question of ‘emission’ in such cases. The word ‘penetrate’ would mean to access into or through pass through to 3 of POCSO Act. The ‘sexual assault’ includes rape and other forms of physical assault of a sexual nature including sodomy. Whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault as specified in Section 7 of the POCSO Act. The word ‘Virile’ means having male qualities pertaining Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim to the male sex able to procreate. With respect to female organ ‘pudendum’ means the external genital organs of a woman. ‘Labia’ are part of the female genitalia they are the major externally visible portions of the ‘vulva’. Two parts of ‘labia’ are ‘labia majora ‘labia minora immediately posterior to the external urethral orifice. Its anterior wallis related to the bladder and the uterus its posterior wall to the lower part of the rectum and the anal canal. It accommodates the penis during sexual intercourse. In the above said definitions of the male organs and female organs and to prove the allegation of penetrative sexual assault in terms of the provision of POCSO Act the penetration of penis into vagina mouth urethra or anus of a child or makes the child to do so with him or any other person is necessary. Although the explanation to the meaning of vagina has not been given in the POCSO Act as given in Section 375 of the IPC but looking to the legislative intent of the POCSO Act the same explanation may be acceptable while dealing the cases of the POCSO Act. Therefore it is concluded that for the penetrative sexual assault for the purpose of Section 3 of the POCSO Act also the penetration of penis into vagina would include all the above specified parts of the female organ and if such evidence has been brought in the testimony of the victim the charge of Section 3 would prove otherwise it would come within the purview of Section 7 of the POCSO Act. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim In the above discussion and as per the testimony of the victim referred above it is clear that except of removing of wearing apparels of the victim and the removing of the apparels of the accused the allegation of sexual assault has come. The aforesaid testimony does not testify the requirement of Section 3 of the POCSO Act in the light of the above discussions. Therefore in the opinion of this Court the conviction of the appellant relying upon the sole testimony of the victim for the charge under Section 3 of the POCSO Act and the sentence so awarded stands set aside. 25. As per the testimony of the victim the sexual assault has been committed by the accused appellant with her and to such extend her testimony is in ocular and withstand to those allegations. Therefore the testimony of the victim cannot be disbelieved to such extent. Simultaneously it cannot be ignored that in her testimony the allegation of penetration of virile to the pudendum has not come. However it is only said that the appellant has sexually assaulted her. In absence of having the ingredient in the Court testimony of the victim regarding penetrative sexual assault finding of conviction for the charge under Section 3 of the POCSO Act as recorded by the Trial Court is not justified. Hence looking to the testimony of the victim and its contents the charge of Section 7 sexual assault can be found proved. Therefore the alternative argument as advanced by the counsel for the appellant is acceptable and the findings proving the charge of Section 3 of the Trial Court cannot be countenanced. With the said discussions both the questions are 26. Accordingly this appeal is hereby allowed in part. The conviction of the appellant for the charge under Section 3 and the sentence so awarded by the impugned judgment is hereby set aside. As per the discussion Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim made hereinabove the appellant is held guilty for the charge under Section 7 of the POCSO Act and he is directed to undergo the sentence of three years Rigorous Imprisonment with fine of Rs.5000 in default one month Rigorous Imprisonment. The judgment of the Trial Court stands modified in above terms. 27. The appellant is on bail therefore he shall surrender to the custody within a period of one month from the date of pronouncement of the judgment and shall undergo the sentence as directed hereinabove. On failure to surrender by the appellant the Trial Court shall take appropriate step to take him into custody for serving the sentence. It is needless to observe that the period of sentence already undergone by him during trial shall be set off from the sentence directed hereinabove as per Section 428 of the Cr. P.C. 28. The record of the Trial Court be sent back forthwith. J.K. MAHESHWARI ) CHIEF JUSTICE

Liberty of a person cannot be curtailed on baseless and unfounded allegations but is restricted by larger social interest: Tripura High Court

Materials available against the accused do not justify the deprivation of his liberty by his detention in prison but individual liberty is always restricted by a larger social interest. A single-judge bench comprising of Justice S.G. Chattopadhyay adjudicating the matter of Tapash Sarkar v. The State of Tripura(AB 42 of 2021) dealt with an issue of whether to grant pre-arrest bail to the accused or not. In the present case, the accused is apprehending arrest u/s s 22(b),25,27(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act,1985 and seeking pre-arrest before the court. The police recovered around 11.52 gms of heroin in 455 plastic containers from the dwelling house of the accused and his father Dipak Sarkar and younger brother Ranjit Sarkar were arrested on the spot. In pursuance of secret information, the police raided the house of the accused in the afternoon at about 4:@5 pm and recovered the contraband from the backyard. The accused who was also living in the same house somehow managed to abscond the arrest. The petitioners contended that Section 25 of the NDPS Act under which the case has been registered against the accused has no application because the accused does not own the house from where the contraband was allegedly seized by police. Similarly, Section 27(a) is not also applicable because there is no allegation of consumption of any narcotic drug or psychotropic substances against the accused. It is also contended by the counsel that no material has been placed before the court even to guess that the seized contraband was recovered from his possession and as a result, Section 22(b) cannot also be used against him. Moreover, there is no allegation against the accused that he abated the commission of the offence or conspired with his father and brother to commit the offence. Therefore, he cannot also be booked under Section 29 of the NDPS Act. It was also argued that the allegations made out in the FIR do not constitute any of the offences, aforesaid, under which the case has been registered against the accused. As a result, the accused is entitled to pre-arrest bail. Also, there was no material to suggest that he ever possessed the said contraband, the charge of illegal possession of contraband against him is unfounded. Further, it was submitted that the Petitioner is a patient of chronic renal failure and has a restricted diet and his imprisonment will be detrimental to his health The Respondent submitted that in no circumstances the accused is entitled to bail. It was submitted that the restrictions provided under Section 37 of the NDPS Act, accused cannot be released on bail unless this court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and he is not likely to commit any offence while on bail. Reliance was made on an SC judgement and was stated that recording of findings in terms of Section 37 of the NDPS Act is a sine qua non for granting bail to an accused involved in an offence under the NDPS Act. Further submissions on behalf of the state respondent is that Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused which states that in trial under the NDPS Act, it may be presumed, unless and until the contrary is proved that an accused has committed an offence under it in respect of the articles recovered from his possession which he fails to account satisfactorily. It was also stated by the materials collected against the accused during investigation of the case is more than sufficient to justify his arrest and detention. Also in regards to the chronic renal failure of one of the accused , it was stated that the certificate issued by the doctor is not enough to reach a conclusion about the illness of the accused without any prescription accompanied by his diagnostic reports. And hence bail application should be rejected.

HIGH COURT OF TRIPURA AB 421 Shri. Tapash Sarkar @ Rakesh Applicant(s) The State of Tripura Respondent(s) B E F O R E HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY For ApplicantMr.K.Nath Adv. Mr. P.Roy Barman Sr. Adv. For Respondent(s) : Mr. Ratan Datta PP. O R D E R Apprehending arrest in Belonia P.S. case No. 2021 BLN 011 which has been registered under Sections 22(b) 25 27(a) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 the FIR named accused Tapash Sarkar @ Rakesh has approached this court by filing an application under Section 438 of the Code of Criminal Procedure 1973(Cr.P.C hereunder) for granting pre arrest bail to him. On the factual score 11.52 grams of heroin contained in 455 plastic containers was recovered and seized by police from the dwelling house of the accused on 14.02.2021 and his father Dipak Sarkar and younger brother Ranjit Sarkar were arrested at the spot. The case of the prosecution as projected in the FIR is that pursuant to a secret information police conducted raid in the house of the accused in the afternoon at about 4.25 p.m of the said date and recovered the said contraband from the backyard of the house of the accused in presence of his father and younger brother and after recovery and seizure of the said contraband from there both of them were arrested by police. The present accused who is also an inmate of the house managed to escape police arrest by absconding from his house. It was also stated in the FIR that police complied with the statutory provisions laid down under Sections 42 and 50 of the NDPS Act before the said search and seizure were carried out in the dwelling house of the accused and the arrest of his father and younger brother was made. Bikash Debbarma Sub Inspector of Police of Belonia police station who was a member of the police team which conducted the alleged search and seizure lodged a suo moto FIR with the Officer in charge of Belonia police station on 14.02.2021. Based on his FIR the case was registered against the petitioner and also against his father and younger brother. As noted his father Dipak Sarkar and his younger brother Ranjit Sarkar were arrested at the advocate. spot. In this backdrop of circumstances Tapas Sarkar@Rakesh seeks pre arrest bail under Section 438 Cr.P.C. Heard Mr.P.Roy Barman learned Sr. Advocate appearing for the petitioners along with Mr.K.Nath learned Also Heard Mr.Ratan Datta learned PP who is representing the state respondent. Counsel appearing for the accused contends that Section 25 of the NDPS Act under which the case has been registered against the accused has no application because accused does not own the house from where the contraband was allegedly seized by police. Similarly Section 27(a) is not also applicable because there is no allegation of consumption of any narcotic drug or psychotropic substances against the accused. It is also contended by the counsel that no material has been placed before the court even to guess that the seized contraband was recovered from his possession and as a result Section 22(b) cannot also be used against him. Moreover there is no allegation against the accused that he abated the commission of the offence or conspired with his father and brother to commit the offence. Therefore he cannot also be booked under Section 29 of the NDPS Act. Counsel appearing for the petitioner therefore argues that the allegations made out in the FIR do not constitute any of the offences aforesaid under which the case has been registered against the accused. As a result accused is entitled to pre arrest bail. Mr.Roy Barman learned Sr. Advocate submits that the contraband was allegedly seized from the backyard of the house owned by his father which is also inhabited by others. Since there is no material to suggest that he ever possessed the said contraband the charge of illegal possession of contraband against him is unfounded. It is also contended by the counsel of the petitioner that he is a patient of chronic renal failure which has been certified by a nephrologist vide certificates dated 20.04.2021 and 02.07.2021 issued by Dr.Anupam Majumder a consultant nephrologist and renal transport physician. Counsel submits that the accused is on restricted diet and his imprisonment will have a serious impact on his health. Learned counsel therefore urges that court to protect the accused from arrest and detention by granting pre arrest bail to him. Mr.Ratan Datta learned Public Prosecutor has emphatically submitted that in view of the nature the charges and the materials available against him in no circumstances the accused would be entitled to bail at this case. It is submitted by the learned PP that for the restrictions provided under Section 37 of the NDPS Act accused cannot be released on bail unless this court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and he is not likely to commit any offence while on bail. In support of his contention Mr.Datta learned PP besides referring to the statute relies on the decision of the Apex Court in Superintendent of Narcotic Control Bureau Chennai vs. R.Paulsamy reported inwhich have been produced by the prosecution. Considered the submissions of the counsel representing the parties. It is not denied that the house from where the seized contraband was recovered and seized is the dwelling house of the accused where he dwells along with his accused father Dipak Sarkar and brother Ranjit Sarkar. The investigating agency has stated that the present accused managed to escape from the spot before the search and seizure was carried out there by police. In view of the incriminating statements of witnesses and seizure of the contraband form his dwelling house the present accused has been implicated by police and investigation of the case is in progress against him. Whether in these circumstances he should be released on pre arrest bail is the matter to be considered by this court. The Supreme Court laid down parameters to be followed while considering application for bail moved by an accused involved in offence under the NDPS Act. In the case of Union of India vs. Ram Samujh and Anr. reported in9 SCC 429 the Apex Court succinctly held that accused of offence under the NDPS Act should not be released on bail unless the mandatory conditions as provided under Section 37 of the NDPS Act are satisfied. Observation of the Apex Court in paragraphs 7 and 8 of the said judgment are as under: “7.It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case 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 causes deleterious effects and 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 punishment under NDPS Act has observed about the adverse effect of such activities in Durand Didien v. Chief Secry . Union Territory of Goa. as underthere are reasonable grounds for believing that accused is not guilty of such offence and ii) that he is not likely to commit any offence while on bail the release of are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs the Court should implement the law in the spirit with which the Parliament after due deliberation has amended” In State of Madhya Pradesh vs. Kajadif any also stands vacated. Return the CD. Saikat Sarma PA

This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution: High Court of Jammu & Kashmir and Ladakh

The contention of the petitioner that the petitioner is entitled to bail on ground of delay is also not sustainable in view of the fact that it is not the case where the prosecution has not led any evidence, rather the prosecution has examined number of witnesses. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Kewal Sharma v. Union Territory of J&K [Bail App No. 79/2021] which was decided upon by a single judge bench comprising Justice Rajnesh Oswal on 12th November 2021. The facts of the case are as follows. the petitioner is facing trial for commission of offence under section 302 RPC pending before the court of 2nd Additional Sessions Judge, Jammu. The allegations against the petitioner are that on 28.08.2013, when the deceased Vijay Kumar came to the residence of the petitioner for the purpose of getting money regarding the land purchased by the petitioner from the deceased, the petitioner murdered the deceased and cut the body of the deceased into various parts with Axe and further after keeping the body parts in a trunk and bag carried in a vehicle and threw in the river-Chenab. The charges for commission of offences under sections 302/201 RPC were framed against the petitioner and the prosecution has cited as many as 32 witnesses and out of which, many witnesses have been examined by the prosecution and number of other witnesses are yet to be examined. The court perused the facts and arguments presented. It was of the opinion that “The case against the petitioner is based upon the disclosure statement and the last scene theory. So far as evidence brought on record is concerned, it is not the case where all the material witnesses have turned hostile and have not supported the prosecution story. This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution. The contentions raised by the petitioner that there is in fact no last scene theory and the disclosure does not connect the petitioner with any crime, pertain to the merits and cannot be considered at this stage. A number of other witnesses are yet to be examined and they include the material witnesses as well with regard to the proceeding of the deceased to the house of the petitioner. Due to corona pandemic all the Courts functioned in restricted manner for the last more than one year. But still the trial court can be directed to conclude the trial expeditiously. In view of the above, the instant application has no merit, as such, the same is dismissed. The learned trial court is directed to conclude the trial expeditiously and no un-necessary adjournments shall be granted to either of the parties.”

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH Reserved on: 28.10.2021 Pronounced on: 12.11.2021 Bail App No. 79 2021 Through : Mr. Anmol Sharma Advocate Kewal Sharma Union Territory of J&K Through : Mr. Aseem Sawhney AAG Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioner is facing trial for commission of offence under section 302 RPC in a challan tilted State vs Kewal Sharma arising out of FIR bearing No. 109 2014 for commission of offence under section 302 RPC pending before the 2nd Additional Sessions Judge Jammu. The present bail application has been filed by the petitioner on the ground that the petitioner has been in custody since 06.06.2014 and the learned trial court has rejected the bail application without considering the fact that the material witnesses have been examined and further that the evidence led by the prosecution does not connect the petitioner with the commission of offence who has been in custody for the last more than seven years. Mr. Anmol Sharma learned counsel for the petitioner has reiterated the grounds those have been taken in the application. He further argued that the material witnesses have been examined and the whole 2 Bail App No. 79 2021 of the case of prosecution is dependent upon the circumstantial evidence and the petitioner is in custody without there being any evidence against him. Per contra Mr. Aseem Sawhney learned AAG learned counsel for the respondent has vehemently argued that while considering the bail application the merits are not required to be considered and all the arguments raised by Mr. Anmol Sharma pertained to the merits of the case and as such in view of the bar contained in section 497 Code of Criminal Procedure regarding the grant of bail in offences exclusively punishable with death or imprisonment petitioner cannot be enlarged on bail. Heard and perused the scanned record of the trial court. From the record it is evident that the petitioner is facing trial for commission of offence under section 302 RPC pending before the court of 2nd Additional Sessions Judge Jammu. The allegations against the petitioner are that on 28.08.2013 when the deceased Vijay Kumar came to the residence of the petitioner for the purpose of getting money regarding the land purchased by the petitioner from the deceased the petitioner murdered the deceased and cut the body of the deceased into various parts with Axe and further after keeping the body parts in a trunk and bag carried in a vehicle bearing registration No. JK02 BB 4460 and threw in the river Chenab. The charges for commission of offences under sections 302 201 RPC were framed against the petitioner on 10.11.2014 and the prosecution has cited as many as 32 witnesses and out of which many witnesses 3 Bail App No. 79 2021 have been examined by the prosecution and number of other witnesses are yet to be examined. The case against the petitioner is based upon the disclosure statement and the last scene theory. So far as evidence brought on record is concerned it is not the case where all the material witnesses have turned hostile and have not supported the prosecution story. This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution. The contentions raised by the petitioner that there is in fact no last scene theory and the disclosure does not connect the petitioner with any crime pertain to the merits and cannot be considered at this stage. A number of other witnesses are yet to be examined and they include the material witnesses as well with regard to the proceeding of the deceased to the house of the petitioner. The Apex Court in Satish Jaggi v. State of Chhattisgarh reported in11 SCC 195 has held as under: “Normally if the offence is non bailable also bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non bailable offence the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of 4 Bail App No. 79 2021 granting of bail the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.” The allegations against the petitioner are serious in nature. More so the contention of the petitioner that the petitioner is entitled to bail on ground of delay is also not sustainable in view of the fact that it is not the case where the prosecution has not led any evidence rather the prosecution has examined number of witnesses. Otherwise also due to corona pandemic all the Courts functioned in restricted manner for the last more than one year. But still the trial court can be directed to conclude the trial expeditiously. In view of the above the instant application has no merit as such the same is dismissed. The learned trial court is directed to conclude the trial expeditiously and no un necessary adjournments shall be granted to either of the parties. (Rajnesh Oswal Judge JAMMU 12.11.2021 Whether the order is speaking: Whether the order is reportable:

“It must be borne in mind that severe the punishment, greater has to be the care taken”: Bombay High Court

It must be borne in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed, this was emphasised in the recent case of  Rajendra Radhakisan Raut v. The State of Maharashtra And Others [WRIT PETITION NO.11717 OF 2021], listed in the Bombay High Court, Bench at Aurangabad. The judgement was pronounced on 10th  February, 2022, and the said proceedings were presided by Justice SMT. Bharati H. Dangre. The facts, as presented before the court of law, are as follows. A move was initiated for removal of its Sarpanch by alleging corruption, gross negligence and misconduct in discharge of his duties and his removal was sought by one of the villager/voter, who succeeded in his venture, but in an appeal proceedings, when the Sarpanch is restored to his office, he has approached this Court by filing the present Writ Petition. The election was to the post of the Sarpanch of Village Panchayat Nalwandi, Taluka and District Beed. During the proceedings, many landmark judgments of M.M. Malhotra vs. Union of India, [2005 (8) SCC 351], Bhanumati vs. State of U.P., [2010 (12) SCC 1 : AIR 2010 SC 3796], State of Punjab vs. Baldev Singh, [1999 (6) SCC 172] were quoted in order to put emphasize on the pertinent case. The ruling in the case of State of Punjab vs. Baldev Singh, [1999 (6) SCC 172] was emphasised. It was held that “It must be borne in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.” The Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, emphasised the ruling in the case of  Ravi Yashwant Bhoir vs. District Collector, Raigad and others [(2012) 4 SCC 407]. It was held that “In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law.” The court in light of the above, held that “The Writ Petition assailing the said order must necessarily fail and is dismissed.”  

on 16 02 2022 on 17 02 1 wp11717o21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11717 OF 2021Rajendra s o Radhakisan Raut Age : 48 years Occupation : Advocate R o Nalwandi Tq. & Dist.Beed....PETITIONER VERSUS 1.The State of Maharashtra.Through it’s Secretary Rural Development Department Mantralaya Mumbai.2.Additional Divisional Commissioner Aurangabad Rregion Aurangabad.3.Chief Executive Officer Zilla Parishad Beed.4.Radhakisan Laxman Mhetre Age : 41 years Occupation : Agril R o Nalwandi Tq. & Dist.Beed....RESPONDENTS…Shri Ankush N. Nagargoje Advocate for the petitioner.Shri Kiran B. Jadhavar AGP for the respondent Nos.1 and 2.Shri P.D. Suryawanshi Advocate for respondent No.3.Shri S.T. Yaseen Advocate for respondent No.4.…CORAM : SMT. BHARATI H. DANGRE J. Reserved on : 02nd February 2022 Pronounced on : 10th February 2022 on 16 02 2022 on 17 02 2 wp11717o21JUDGMENT :1.Democracy can be described as “Power of People” a way ofgoverning which depends upon the will of the people. For the essence ofdemocracy is the decentralization of power and allowing governance toreach at the grass root level for welfare of people. The local governmentelected by people imbibes democratic functioning of the society involvingpeople in the area. The local bodies having administrative legislative andfinancial autonomy with dedicated bureaucracy at local level has helpedthis country realize its dream.In the words of the father of nation Mahatma Gandhi “In thisstructure composed of innumerable villages there will be ever widening never ascending circles. Life will not be a pyramid with the apex sustainedby the bottom. But it will be an oceanic circle whose centre will be theindividual always ready to perish for the village the latter ready to perishfor the circle of villages till at last the whole becomes one life composedof individuals never aggressive in their arrogance but ever humble sharing the majesty of the oceanic circle of which they are integral units.”2.The aforesaid may not be true for the village Nalwandilocated in Taluka and District Beed when a move was initiated forremoval of its Sarpanch by alleging corruption gross negligence andmisconduct in discharge of his duties and his removal was sought by oneof the villager voter who succeeded in his venture but in an appealproceedings when the Sarpanch is restored to his office he hasapproached this Court by filing the present Writ Petition.3.The election to the post of the Sarpanch of Village PanchayatNalwandi Taluka and District Beed was held in December 2017 andRespondent No.4came to be directly on 16 02 2022 on 17 02 3 wp11717o21elected as a Sarpanch of village Nalwandi which comprises of 13members and he assumed charge of the said post in January 2018. 4.In the year 2020 and to be precise on 05.02.2020 thepetitioner in this petition filed a complaint with the DivisionalCommissioner Aurangabad under Section 39(1) of the MaharashtraVillage Panchayats Actseeking an inquiry intothe alleged corruption committed by the Sarpanch and the then VillageDevelopment Officer and this relief was sought in the backdrop of theallegations made in paragraphs 1 to 8 of the complaint.Upon the complaint being preferred respondent No.4 Sarpanch filed his detailed reply denying the allegations levelled againsthim on 28.04.2021.5.The Additional Divisional Commissioner i.e. RespondentNo.2 addressed a communication to the Chief Executive Officer ZillaParishad Beed on 15.02.2020 to conduct an inquiry. Pursuant thereto the fact finding report was called from the office of the BlockDevelopment Officer Panchayat Samiti Dharur and on receipt of thereport dated 29.05.2020 the Chief Executive Officer issued a show causenotice to respondent No.4 on 04.11.2020 as to why action should not betaken against him in the wake of the report submitted by the BlockDevelopment Officer. Respondent No.4 Sarpanch submitted his reply on17.11.2020 and the Chief Executive Officer conducted an inquiry on on 16 02 2022 on 17 02 4 wp11717o2117.12.2020 and 30.12.2020.Upon following the principles of natural justice and recordingthe prima facie opinion that respondent No.4 Sarpanch is found to beguilty of the alleged charges levelled at Point Nos.1 to 5 which warrantedan action under Section 39(1) of the VP Act the Chief Executive Officer Zilla Parishad forwarded his inquiry report along with the reply filed bythe Sarpanch to respondent No.2 Divisional Commissioner.6.On 06.07.2021 by making reference to the report of the ChiefExecutive Officer and also to the reply submitted by respondent No.4 Sarpanch and upon hearing the parties the Divisional Commissionermade an attempt to discern the factual aspects and on perusal of thematerial placed before him arrived at the conclusion that respondentNo.4 Sarpanch has committed misconduct while discharging his duties asSarpanch and therefore by exercising the power vested in him underSection 39(1) of the VP Act the complaint filed by the petitioner wasgranted and the report of the Chief Executive Officer dated 09.03.2021was accepted and respondent No.4 Sarpanch came to be removed fromthe post of Sarpanch of village Nalwandi.7.Being aggrieved by the order of the Divisional Commissionerdated 06.07.2021 respondent No.4 Sarpanch preferred an appeal underSection 39(3) of the VP Act before the Honourable Minister RuralDevelopment Department being GP Appeal No.19 2021 which was on 16 02 2022 on 17 02 5 wp11717o21allowed on 06.10.2021 after hearing respondent No.4 as well as thepetitioner. On due deliberation upon the order passed by the AdditionalDivisional Commissioner on 06.07.2021 the Honourable Ministerreturned a finding that respondent No.4 Sarpanch is not engaged in anyact for his own benefit and since his personal interest is not involved intothe alleged acts of misconduct merely because there are someadministrative lapses the removal of a duly elected Sarpanch through thedemocratic process was found to be improper. By exercising the powerconferred by Section 39(3) of the VP Act the Honourable Minister setaside the impugned order passed by the Additional DivisionalCommissioner removing the Sarpanch.It is this order which is assailed in this Writ Petition.8.I have heard the learned counsel appearing for the respectiveparties and with their assistance perused the record. On 26.10.2021 while issuing the notice the followinginterim order was passed : “Till the next date so far as handing over of the charge isconcerned there shall be status quo as is operating today.”The parties are contesting the effect of the said status quoorder since according to the petitioner respondent No.4 Sarpanch isrelieved of his charge whereas according to the learned counsel forrespondent No.4 he is discharging his function as the Sarpanch and is on 16 02 2022 on 17 02 6 wp11717o21presiding over the meetings.In any case since both the contesting parties expressed theirconsensus to argue the writ petition finally and determine the rights of theparties I deem it expedient to grant RULE and I heard the learned counselby making the Rule returnable forthwith.9.Shri Nagargoje the learned counsel for the petitioner wouldsubmit that the petitioner had levelled eight serious allegations against theSarpanch and the Divisional Commissioner directed the Chief ExecutiveOfficer to make an inquiry and submit his report in respect of theallegations made in the complaint. Since the petitioner was apprehendingthat there is pressure of the local MLA and therefore the inquiry officersfrom other talukas were sought to be appointed to conduct the processand his request was acceded to by the Chief Executive Officer and ainquiry committee consisting of the Block Development Officer PanchayatSamiti Dharur and the Assistant Block Development Officer PanchayatSamiti Kaij was constituted.10.Shri Nagargoje would submit that the said committeephysically visited village Nalwandi and submitted it’s report to the ChiefExecutive Officer which clearly indicts the Sarpanch since the reportindicates that there is misappropriation in respect of making payment toone Narayan Raut and there is also misappropriation in respect ofinstallation of LED solar lamps. Misappropriation of village panchayat on 16 02 2022 on 17 02 7 wp11717o21funds received under the Swaccha Bharat Mission is also established. Thereport further indicates that without constructing toilet blocks the amounthas been disbursed and that too in the names of persons belonging to onefamily. Apart from this it is also revealed that the cash is not deposited inthe account of the Village Panchayat and the same has beenmisappropriated. Heavily relying on this report Shri Nagargoje submitsthat the report clearly held the respondent No.4 responsible forirregularity and misappropriation which led to irresistible conclusion thathe has committed misconduct which deserves his removal from the postof the Sarpanch.11.Shri Nagargoje would submit that the Chief Executive Officerfollowed the procedure of issuing notices to the parties includingrespondent No.4 and on verifying the record and by affording opportunityof hearing to the concerned parties conducted an inquiry as contemplatedunder Section 39 of the VP Act and submitted his report to the DivisionalCommissioner by making a positive recommendation to take an actionunder Section 39 for removal of the Sarpanch. Thereafter theCommissioner conducted hearing and on perusal of the report receivedfrom the Chief Executive Officer he was not convinced with the argumentadvanced that the report did not disclose any misconduct and therefore by recording that there is misappropriation of amounts in recovery oftaxes construction of toilet blocks installation of solar lamps in Dalit Vasti on 16 02 2022 on 17 02 8 wp11717o21and payment of honorarium to Gram Rojgar Sevak the DivisionalCommissioner deemed it fit to exercise the power conferred on him inremoving the Sarpanch who was found guilty of misconduct in dischargeof his duties.Shri Nagargoje would then submit that in the wake of thedetailed inquiry conducted by the Chief Executive Officer which formedthe basis of action of the Divisional Commissioner in an appeal beingpreferred to the Honourable Minister though the scope for interferencebeing very limited the impugned order of the Honourable Ministerallowing the appeal cannot be justified and by referring to the reasonsrecorded in the impugned order the submission is it cannot be permittedto be sustained.12.In assailing the impugned order the submission of learnedcounsel is that the hearing was conducted by the Hon’ble Ministerthrough video conferencing and though necessary arrangement for virtualhearing was made in the office of Collector at Beed the petitioner was notallowed to argue the matter and without affording an opportunity ofhearing to him it was reserved for orders. As per the petitioner’sknowledge even the concerned officers who conducted the inquiry andwho passed the order of disqualification were not heard and the mattercame to be decided only on the basis of documents and the say submittedby the respondent No.4 Sarpanch. The submission is the Honourable on 16 02 2022 on 17 02 9 wp11717o21Minister has decided the appeal in a very insouciant manner and on thiscount the impugned order deserves to be set aside. Another point pressed into service by the learned counsel ShriNagargoje is that as per the conduct of business rules it is only theCabinet Minster for Rural Development who is empowered to hear theappeal but the appeal is heard by the State Minister and therefore theorder is in non est the power being exercised by authority who did notpossess the same. 13.Per contra the learned counsel Shri Yaseen for RespondentNo.4 Sarpanch by inviting my attention to the impugned order wouldsubmit that the Hon’ble Minister has figured nub of the allegations and hehas rightly saved the Respondent No.4 from his removal by holding thatthe administrative lapse or an error of judgment on his part does notamount to misconduct and while dealing with the democratically electedSarpanch and when serious action of removal is contemplated againsthim the charges accusations must be held to be proved and merelybecause the allegation is made a duly elected representative does notdeserve a removal. According the learned counsel the HonourableMinister has rightly appreciated the merit of allegations and by referringto the reports relied upon by the Commissioner arrived at a contraryfinding since the charge of misconduct which was faced by him could notbe established. on 16 02 2022 on 17 02 10 wp11717o21In support the learned counsel would rely upon the decisionof the Honourable Supreme Court in the case of Ravi Yashwant Bhoir vs.District Collector Raigad and others 4 SCC 407 wherein theHonourable Supreme Court has held that an action which is detrimentalto the prestige of the institution may amount to misconduct but mereerror of judgment resulting in doing of negligent act does not amount tomisconduct though in exceptional circumstances not working diligentlymay be a misconduct and even in a particular case negligence orcarelessness may be also misconduct.By referring to the authoritative pronouncement of theHonourable Supreme Court and being made applicable to the facts of thepresent case the submission of the learned counsel for respondent No.4 is that since the findings rendered by the Divisional Commissioner werefalling short of holding the Sarpanch guilty of misconduct the HonourableMinister has rightly intervened and set aside the impugned order.As regards the jurisdiction of the Honourable Minister ofState the submission advanced is that the conduct of business rules aremerely directory in nature and there is no embargo imposed in the saidRules to conclusively declare that it is only the Cabinet Minister who canexercise the power. It is also submitted that no such objection was raisedby the petitioner when the appeal was heard leading to an irresistibleconclusion that he has surrendered to his jurisdiction and therefore now on 16 02 2022 on 17 02 11 wp11717o21he cannot question the same.14.In the wake of the rival claims being advanced by thecontesting parties to begin with I must refer to the allegations levelled bythe petitioner against respondent No.4 Sarpanch in his complaint whichform the genesis of the order passed by the Divisional Commissioner aswell as the Honourable Minister as under:when it wasimperative to get the work done only in Dalit Vasti. Since respondentNo.4 Sarpanch has offered the explanation that by mistake two streetlamps have been installed near the residences of Vijaymala and Bhimai itcan be clearly discerned that the amount received for the Dalit Vasti has on 16 02 2022 on 17 02 22 wp11717o21been expended somewhere else.21.Based on the aforesaid conclusions derived the Commissionerdeemed it fit to exercise the power conferred upon him under Section39(1) on arriving at a conclusion that respondent No.4 Sarpanch hascommitted misconduct while discharging his duties as Sarpanch andtherefore the complaint accused him of such misconduct came to beaccepted and respondent No.4 is declared to have been removed from thepost of the Sarpanch.22.It is against this order dated 06.07.2021 respondent No.4 Sarpanch preferred an appeal to the Honourable Minister who reversedthe findings of the Commissioner on all five points and resultantly setaside the order passed by the Divisional Commissioner by allowing theappeal vide the impugned order 06.10.2021.23.When the reasoning of the Honourable Minister is carefullyperused it is apparent that on perusal of the actual complaint the reportof the Chief Executive Officer Zilla Parishad Beed the impugned orderpassed by the Divisional Commissioner and on hearing the respectiveparties and on perusal of necessary documents placed before him theHonourable Minister found substance in the explanation offered by therespondent No.4 Sarpanch who was removed by the Commissioner.As regards the charge of recovery of taxes and expenditureincurred in the financial years 2018 2019 and 2019 2020 the explanation on 16 02 2022 on 17 02 23 wp11717o21offered by respondent No.4 Sarpanch to the effect that the account of theGram Panchayat is in the Bank located at a distance of 20 kilometers atBeed and on account of the lock down imposed in the pandemic it wasnot possible to deposit the said amount in the bank and therefore expending the amount by passing appropriate resolutions in the monthlymeeting of the Gramsabha and the Gram Panchayat was found to beacceptable explanation. Moreover the Honourable Minister recorded thatit is not the allegation levelled against respondent No.4 Sarpanch thatthere is any excess expenditure or the amount spent was not permissibleto be spent under the said head.24.As regards the charge about construction of toilet blocks theAppellate Authority was convinced with the submission of respondentNo.4 Sarpanch that during the financial years 2013 2014 and 2014 2015 one Mrs.Archana Ashok Jadhav was holding the post of theSarpanch and respondent No.4 assumed the charge of the Sarpanch on05.01.2018 and the explanation offered that when he accepted thecharge the baseline list was received which included names of threepersons for disbursement of grants for construction of toilet blocks and assuch no fault can be attributed to respondent No.4 Sarpanch came to beaccepted.As regards the allegation of the amount of Rs.26 000 beingdeposited in the bank towards honorarium payable to the Gram Rojgar on 16 02 2022 on 17 02 24 wp11717o21Sevak the conclusion is derived that the amount was to be disbursed toShri Narayan Raut towards his honorarium as per the resolution passed bythe Gram Panchayat and no illegality can be attributed to respondentNo.4 Sarpanch or the Gramsevak. A detailed reference is made by theHonourable Minister to the report submitted by the Police Station Pimpalner before the Court in the proceedings No.17 2021 which clearlyreflected that the Sarpanch has not committed any offence as alleged.About the charge that the amount of Rs.9000 was not beingrecorded in the cash book or not deposited in the bank the AppellateAuthority is satisfied that the respondent No.4 Sarpanch is notresponsible for the said act and in any case an inquiry has been initiatedagainst the Recovery Clerk of the Gram Panchayat from whom theamount is liable to be recovered.In respect of the allegation about installation of lamps otherthan Dalit Vasti the Honourable Minister recorded that the lamps wereinstalled near the residences of two persons Gokul Sonwane and Jadhav who belong to the Scheduled Castecategory and thisconclusion is drawn on the basis of the report given by one who has madeentry into the measurement book to the effect that two lamps have beeninstalled in Dalit Vasti and in terms of Section 57(3) of the VP Act theSarpanch cannot be held responsible for the alleged act since that Sectionfixes the responsibility of the village funds on the Secretary. on 16 02 2022 on 17 02 25 wp11717o2125.In the wake of the aforesaid findings being rendered theHonourable Minister has recorded that for the allegations levelled in thecomplaint respondent No.4 Sarpanch himself cannot be held responsiblesince whatever action is taken is with the approval of the Gramsabha andthe Gram Panchayat and moreover the Sarpanch has not availed anybenefit for himself and no document has been brought on record to thateffect and therefore the Sarpanch cannot be said to be person guilty. Ifassuming for a moment that there are some administrative lapses this isnot the manner in which a representative elected by the people at largecan be removed is the observation in the impugned order passed by theHonourable Minister. With this conclusion reached at the impugned orderof the Divisional Commissioner is set aside by the Honourable Minister.26.On perusal of the two impugned orders the first one passedby the Commissioner and the second order passed by the HonourableMinister setting aside the order of the Commissioner and holding thatrespondent No.4 Sarpanch cannot be held responsible for any financialirregularity since even if the charges are accepted as it is it would onlyamount to an irregularity and no charge has led to any misappropriation as what was alleged in the complaint and on perusal of the proceedingsconducted in the wake of Section 39 of the VP Act the reasoning of theAppellate Authority is convincing and borne from the record.27.It is apparent that Section 39 confers power on the on 16 02 2022 on 17 02 26 wp11717o21Commissioner to remove from office any Sarpanch on the groundsspecified therein being if he is found guilty of misconduct in discharge ofhis duties or of any disgraceful conduct or of neglect or incapacity toperform his duties or is persistently remiss in the discharge thereof. As faras respondent No.4 Sarpanch in this case who faced an action underSection 39 he is charged of misconduct in discharge of his duties.The word “misconduct” has to be understood as atransgression of some established and definite rule of action a forbiddenact a dereliction of duty unlawful behaviour wilful in character improperor wrong behaviour. The word “misconduct” in normal parlance isunderstood as unacceptable and improper behaviour or mismanagement especially culpable neglect of duties. The Webster’s dictionary defines the word “misconduct” asdeliberate violation of law or standard especially by the governmentofficial wilful in character. In terms of the Honourable Apex Court as held in RaviYashwant Bhoirthe word “misconduct” was focused upon indepth in the backdrop of the misconduct being alleged against an electedoffice bearer in the democratic process and who is sought to be removedin the wake of the statutory provision contemplating his removal on theground of the misconduct. Their Lordships have elaborated the term in thefollowing words : on 16 02 2022 on 17 02 27 wp11717o21“11.Misconduct has been defined in Black s Law Dictionary Sixth Edition as:"A transgression of some established and definiterule of action a forbidden act a dereliction from duty unlawful behavior wilful in character improper orwrong behavior its synonyms are misdemeanor misdeed misbehavior delinquency impropriety mismanagement offense but not negligence orcarelessness."Misconduct in office has been defined as: "Anyunlawful behavior by a public officer in relation to theduties of his office wilful in character. Term embracesacts which the office holder had no right to perform actsperformed improperly and failure to act in the face of anaffirmative duty to act."12.P. Ramanatha Aiyar s Law Lexicon Reprint Edition 1987at page 821 defines `misconduct thus:"The term misconduct implies a wrongfulintention and not a mere error of judgment. Misconductis not necessarily the same thing as conduct involvingmoral turpitude. The word misconduct is a relative term and has to be construed with reference to the subjectmatter and the context wherein the term occurs havingregard to the scope of the Act or statute which is beingconstrued. Misconduct literally means wrong conduct orimproper conduct. In usual parlance misconduct meansa transgression of some established and definite rule ofaction where no discretion is left except what necessitymay demand and carelessness negligence andunskilfulness are transgressions of some established butindefinite rule of action where some discretion isnecessarily left to the actor. Misconduct is a violation ofdefinite law carelessness or abuse of discretion under anindefinite law. Misconduct is a forbidden act carelessness a forbidden quality of an act and isnecessarily indefinite. Misconduct in office may bedefined as unlawful behaviour or neglect by a publicofficer by which the rights of a party have beenaffected."Thus it could be seen that the word`misconduct though not capable of precise definition on reflection receives its connotation from the context on 16 02 2022 on 17 02 28 wp11717o21the delinquency in its performance and its effect on thediscipline and the nature of the duty. It may involvemoral turpitude it must be improper or wrongbehaviour unlawful behaviour wilful in character forbidden act a transgression of established and definiterule of action or code of conduct but not mere error ofjudgment carelessness or negligence in performance ofthe duty the act complained of bears forbidden qualityor character. Its ambit has to be construed with referenceto the subject matter and the context wherein the termoccurs regard being had to the scope of the statute andthe public purpose it seeks to serve.....”28.An error of judgment would not amount to misconduct sinceit implies a wrongful intention and not a mere error of judgment. Mereerror of judgment resulting in negligent act does not amount tomisconduct but the exceptions have been carved out in Ravi YashwantBhoirand mere error of judgment resulting in doing of negligentact does not amount to misconduct.29.In M.M. Malhotra vs. Union of India 2005SCC 351 thefollowing observations of the Honourable Supreme Court are relevant : “17.….It has therefore to be noted that the word misconduct is not capable of precise definition. But atthe same time though incapable of precise definition theword misconduct on reflection receives its connotationfrom the context the delinquency in performance and itseffect on the discipline and the nature of the duty. Theact complained of must bear a forbidden quality orcharacter and its ambit has to be construed withreference to the subject matter and the context whereinthe terms occurs having regard to the scope of thestatute and the public purpose it seeks to serve.” on 16 02 2022 on 17 02 29 wp11717o2130.From the above discussion it is clear that the expression“misconduct” has to be construed and understood in reference to thesubject matter and context wherein the term occurs taking intoconsideration the scope and object of the statute which is beingconstrued. The misconduct is to be measured in terms of the nature of themisconduct and should be viewed with consequence of misconduct as towhether it is detrimental to public interest.The VP Act which is a Law enacted in furtherance of the 73rdamendment to the Constitution for incorporating the Village Panchayatsat the grass root level for every village or group of villages and investingthem with such powers and authority which would enable them tofunction as units of local self government and for development activities inthe rural areas. The Village Panchayat comprises of the Sarpanch who iselected in accordance with the procedure set out in the VP Act and whocould be removed in the like manner as per the procedure prescribed inthe VP Act one of the mode of removal is bringing out the motion of noconfidence by the prescribed number of members and on following theprocedure prescribed in the VP Act.The executive powers for the purposes of carrying out theprovisions of the VP Act vest in the Sarpanch who is directly responsiblefor due fulfillment of the duties imposed upon the Village Panchayat by orunder the VP Act. Such a Sarpanch who is elected under the provisions of on 16 02 2022 on 17 02 30 wp11717o21the VP Act may also be removed by the mode prescribed under Section 39of the VP Act by the Commissioner if he has been found guilty ofmisconduct in discharge of his duties or any disgraceful conduct or neglector incapacity to perform his duties or is persistently remiss in thedischarge his duties.31.Since on election of the Sarpanch to head the VillagePanchayat which is expected to work as a body of local self government with complete autonomy he is removable only on the grounds providedby the statute and since he heads the Village Panchayat he can only beremoved by following the procedure prescribed by law and therefore when the VP Act contemplates his removal on the ground of misconduct indischarge of his duties such misconduct will have to be specificallyproved.32.On perusal of the allegations levelled by the petitioner againstrespondent No.4 Sarpanch which are found to have been substantiallyproved by the Commissioner the Honourable Minister has rendered thefinding that the grounds alleged and material relied upon fell short ofestablishing “misconduct” on the part of the Sarpanch in discharge of hisofficial duties.On minute reading of the accusations faced by respondentNo.4 Sarpanch and material brought on record at the most it can besaid to be amounting to some illegality or irregularity but since the terms on 16 02 2022 on 17 02 31 wp11717o21“misconduct” contemplates something more than this the Commissionerexercising the power under Section 39(1) should have satisfied himselfabout the act alleged to be misconduct in reference to the subject matterand context in which the term is used in Section 39 since he can only beremoved on a proved misconduct.33.Looking into the charges accusations justifying the removalof the Sarpanch as far as the appointment of the Gram Rojgar Sevak ShriNarayan Raut is concerned the report by the Block Development Officer Panchayat Samiti Beed submitted to the Chief Executive officer on29.12.2020 expressly deals with the issue in question and declares thatShri Narayan Raut has been validly selected to hold the said post on26.10.2018 and on the contrary the person who lodged the complaintShri Omprakash Uttareshwar Mhetre is found to be not validly appointed.If this is so the grant which has been received for honorarium to be paidto the Gram Rojgar Sevak was disbursed in favour of the legal heirs ofUttareshwar who discharged his duties on the said post and the reportrecords a finding that the amount of Rs.47970 was due to him out ofwhich Rs.39500 has been disbursed. The report on perusal of therecord of the Village Panchayat records that on 26.10.2018 Shri NarayanRaut has been duly selected in the Gram Panchayat meeting and as per theresolution passed by the Gram Panchayat subject to further directionbeing issued the amount of Rs.40188 is lying in the account of the on 16 02 2022 on 17 02 32 wp11717o21Gram Panchayat. Therefore there is no scope for alleging anymisappropriation or irregularity. In the wake of this the Sarpanch isclearly absolved and the Honourable Minister has even referred to thereport submitted by the Police Station Pimpalner in the proceedings filedbefore the Magistrate by Shri Shri Omprakash Uttareshwar Mhetre by wayof private complaint under Section 156(3) of the Code of CriminalProcedure and the report has been forwarded to the learned Magistrate tothat effect.On a mere assumption that the summary is not yet accepted can be no ground to attribute the charge of misconduct to respondentNo.4 Sarpanch and leaving aside the criminal proceedings the reportdated 29.12.2020 by the Block Development Officer Panchayat Samiti Beed does not establish the said charge against respondent No.4 Sarpanch.34.As far as the charge about the amount being disbursed onmultiple occasions to the members of the same family under the SwachhaBharat Mission the Honourable Minister found the explanation submittedby the Sarpanch to be satisfactory as the stand of the Sarpanch is thatthere is no material to show that three beneficiaries were alreadydisbursed the said amount and therefore there is duplication in the namesof beneficiaries.35.About the allegation of misappropriation of the funds on 16 02 2022 on 17 02 33 wp11717o21available for carrying out the work in the Dalit Vasti there is reportsubmitted by the Assistant Block Development Officer Panchayat Samiti Kaij to the Chief Executive Officer on 01.03.2021 and perusal of the saidreport and measurement book it is manifest that the amount which wassanctioned to the tune of Rs.1 lac for Bhimnagar was intended forinstallation of two LED lamps and two lamps have been installedaccordingly in Dalit Vasti one near the house of Mr.Gokul Sonwane andanother near the house of Mr.Jadhav. As far as Bhima Mhetre isconcerned the inspection report reveals that there was no such lampinstalled but wrongly an entry is taken in the measurement book andtherefore the Engineer who recorded the entry is proceeded againstdepartmentally. As far as Vijaymala Mhetre is concerned though the lampis installed near her house it was not from the funds of Rs.1 lac receivedby the Gram Panchayat for the said purpose and therefore this lamp is notinstalled from the said funds. The concerned Engineer in his letter addressed to the ChiefExecutive Officer on 27.12.2020 clarified that as per the estimatesubmitted for installation of LED lamps the amount of Rs.1 lac wasreceived which was meant for installation of lamps near the houses ofGokul Sonwane and Jadhav. He has clarified that inadvertently the namesof Vijaymala and Bhima have been included in the measurement book andhe has also clarified that no amount has been disbursed for the lamps on 16 02 2022 on 17 02 34 wp11717o21installed at these places and the work of installation of two lamps hasbeen completed in the Dalit Vasti.This in any case does not involve the Sarpanch at all and nomisconduct can be attributed to him. 36.Similarly for the other charges about the amount beingreceived by issuing receipts without taking necessary entries in the cashbook or accounts book respondent No.4 Sarpanch is not responsiblesince at the end of the report it is revealed that it is the Recovery OfficerShri Mukesh Jadhav who has forged the receipt books and he isproceeded against departmentally.As far as irregularity of not depositing the amount in the Bankis concerned respondent No.4 Sarpanch cannot be held liable since it isthe duty of the Village Development Officer to submit the weeklystatement of accounts to the Village Panchayat and to the BlockDevelopment Officer Panchayat Samiti giving in particular the details ofreceipts and the payment of balance funds and accordingly the action hasbeen initiated against Shri B.N. Misal Block Development Officer Panchayat Samiti Beed by conducting an inquiry and penalty ofwithholding one increment has been imposed on him on 14.10.2021.There is also no substance in the allegation about expendingthe amount of taxes recovered without depositing it in the bank since onaccount of the lock down the amount was not deposited in the bank but it on 16 02 2022 on 17 02 35 wp11717o21was spent only after being approved by the Gram Panchayat in it’smonthly meetings for the valid and legal purposes. 37.When confronted with certain statements which are placedon record to the effect that the Sarpanch has accepted the amount ofRs.1000 with a promise that the receipt will be issued at a later point oftime Shri Nagargoje the learned counsel for the petitioner fairlyconcedes that these are cyclostyle statements and the context in whichthese statements are made by the persons who were already allotted thetoilet blocks in the year 2012 2013 the respondent No.4 Sarpanch wasnot holding the post of the Sarpanch and therefore these statements donot lead to the allegation of misconduct but as it can be seen that they areall recorded on the same date and verbatim make the same allegationswithout any basis.38.In the wake of the aforesaid the findings rendered againstrespondent No.4 Sarpanch by the Divisional Commissioner are not basedon valid material being brought on record and the Honourable Minister while reversing the findings of the Commissioner has rightly based hisconclusions on the principle that in democratic process when a dulyelected office bearer is to be removed the procedure must be strictlyadhered to and the charges levelled resulting in removal must be fullyestablished.39.Though it is true that in democratic institution the on 16 02 2022 on 17 02 36 wp11717o21confidence is the foundation on which the super structure of democracy isbuilt and the democratic accountability rests on the confidence of theelectorate and if the representative body does not have confidence in thehead whom they have elected the democracy demands that he ought tobe removed in a democratic manner. In Bhanumati vs. State of U.P. 2010(12) SCC 1 : AIR 2010 SC 3796 the Hon’ble Apex Court has observed thatany head of the democratic institution must be prepared to face the test ofconfidence. Democracy demands accountability and transparency in theactivity of the chairperson the head of the democratic institution.However on the other hand it is equally true that the exercise of anypower having effect of destroying the democratic institution besides beingoutrageous is also dangerous to the democratic set up of this country andthe elected representative cannot be permitted to be removedunceremoniously without following the procedure prescribed by law byadopting casual approach and by resorting to manipulations to achieveulterior purpose.40.In the State of Punjab vs. Baldev Singh 1999SCC 172 the Hon’ble Apex Court considered the issue of removal of an electedoffice bearer and held that where the statutory provision has very seriousrepercussions it implicitly makes it imperative and obligatory on the partof the authority to have strict adherence to the statutory provisions. Allsafeguards and protections provided under the statute have to be kept in on 16 02 2022 on 17 02 37 wp11717o21mind while exercising such power and it was held as under : “28. . It must be borne in mind that severe thepunishment greater has to be the care taken to see thatall the safeguards provided in a statute are scrupulouslyfollowed.”In the wake of the elected representatives who were to facean action of removal from their posts the following observations of theHonourable Supreme Court in Ravi Bhoirare relevant : “34. In a democratic institution like ours the incumbent isentitled to hold the office for the term for which he hasbeen elected unless his election is set aside by aprescribed procedure known to law or he is removed bythe procedure established under law. The proceedingsfor removal must satisfy the requirement of naturaljustice and the decision must show that the authority hasapplied its mind to the allegations made and theexplanation furnished by the elected office bearer soughtto be removed.35. The elected official is accountable to its electoratebecause he is being elected by a large number of voters.His removal has serious repercussions as he is removedfrom the post and declared disqualified to contest theelections for a further stipulated period but it also takesaway the right of the people of his constituency to berepresented by him. Undoubtedly the right to hold sucha post is statutory and no person can claim any absoluteor vested right to the post but he cannot be removedwithout strictly adhering to the provisions provided bythe legislature for his removalthe impugned order of theHonourable Minister does not warrant for any interference.42.The learned counsel for the petitioner has also argued thatthe order impugned is passed by the State Minister of Rural DevelopmentDepartment and he is not the Minister in charge competent to hear the on 16 02 2022 on 17 02 39 wp11717o21appeals in terms of the Maharashtra Government Rules of Business dated26.06.1975 and therefore the impugned order is without jurisdiction.The said argument is mentioned just to be rejected. Perusalof Section 39(3) of the VP provides that any person aggrieved by an orderof the Commissioner under sub sectionorof Section 39 maywithin a period of fifteen days from the date of the receipt of such order appeal to the State Government and the Government shall decide theappeal within a period of one month from the date of receipt thereof.The provision makes it imperative for the State Governmentto decide the appeal within one month. The conduct of business of theGovernment in its various departments is governed by the MaharashtraGovernment Rules of Business which came into force on 01st July 1975.The said Rules being formulated by the Governor of Maharashtra inexercise of the powers conferred by clausesandof Article 166 ofthe Constitution of India provide that the business of the Governmentshall be transacted in the departments specified in the First Schedule andshall be classified and distributed between those departments as laiddown therein. Rule 5 of the said Rules empowers the Governor on theadvice of the Chief Minister to allot among the Ministers the business ofthe Government by assigning one or more departments or part ofdepartments to the charge of a Minister. Rule 10 prescribes that theMinister in charge of the department shall be primarily responsible for the on 16 02 2022 on 17 02 40 wp11717o21disposal of the business appertaining to that department or a part of thedepartment. Rule 14 contemplates that the Secretary of the departmentconcerned is in each case responsible for the careful observance of theserules and when he considers that there has been any material departurefrom them he shall personally bring the matter to the notice of theMinister in charge and the Chief Secretary. 43.The Instructions regarding the business of the Governmentissued under Rule 15 of the Maharashtra Government Rules of Business defines the term “Minister in charge” as the Minister appointed by theGovernor to be in charge of the department of the Government to which acase belongs. The instructions permit the Minister in charge to dispose ofall the cases arising in the department which he controls. Neither theRules nor the Instructions provide that when the power to entertain theappeal as contemplated under Section 39(3) of the VP Act provides for anappeal to be decided by the State Government it shall necessarily bedecided by the Cabinet Minister.When the learned counsel for the petitioner was asked whether there is any material to show that the Cabinet Minister has beenassigned the power to decide the appeals pertaining to removal of theSarpanch he is unable to place on record any document to that effect. In any case the appeal has been decided by the State Ministerand the petitioner has not raised any objection about his jurisdiction and on 16 02 2022 on 17 02 41 wp11717o21therefore it is not now open for him to canvass the same. In any case theinstructions issued regarding the business of the Government are merelymeant for more convenient transaction of business of the Government ofMaharashtra and will not affect the jurisdiction of the State Minister todecide the appeal.The aforesaid objection is therefore without any merit andsubstance and does not warrant any consideration.44.In the wake of the above the impugned order passed by theHon’ble Minister deserves to be upheld and is accordingly upheld. TheWrit Petition assailing the said order must necessarily fail and is dismissed.Rule is discharged.kps

Decision of selection committee is final unless shown to be mala fide – Supreme Court

In the case of Anil Bhardwaj Vs High Court of Madhya Pradesh [Civil appeal no. 3419 of 2020] Supreme Court of India held that the persons who occupy Judicial Service of the State are persons who are expected to have impeccable character and conduct. The High Court of Madhya Pradesh had issued an advertisement inviting applications for recruitment in the post of District Judge (Entry Level) in the cadre of Higher Judicial Service by Direct Recruitment from amongst the eligible Advocates. In pursuance to the advertisement, the appellant submitted online application form. The appellant after being declared successful in the Main Examination was called for interview. The appellant received a communication from the Law and Legislative Department informing that he has been selected for the post of District Judge (Entry Level). He was asked to appear before the Medical Board for the health tests. Later he was informed that he is ineligible for the post as in his attestation form, he had mentioned FIR No.852/2014 being filed against him in which he was later acquitted. Against this action of the High Court the appellant approached the Supreme Court. The appellant submitted that he has not concealed any fact before the High Court regarding the FIR and is entitled to be appointed on the basis of merit. There was no other material on record to indicate that antecedent or conduct of the appellant was not upto the mark. The appellant could not have been deprived of the employment after acquittal. It was not disputed that the criminal case under Section 498A and 406 IPC was pending at the time when the appellant applied for the recruitment, when he appeared for the interview and when the result was declared. The character verification report was received from the State where pendency of the criminal case was mentioned which was the reason for the Committee to declare the appellant unsuitable. The submission to be considered was that whether in view of the subsequent acquittal of the appellant, his case was required to be reconsidered and he was entitled to be appointed. Court relied on the case of Avtar Singh vs. Union of India and others, (2016) 8 SCC 471, where different aspects of verification form after selection including the question of having criminal antecedents and pending of criminal case were examined and it was held that in the event criminal case is pending and incumbent has not been acquitted employer may well be justified in not appointing such an incumbent. Court further referred the case of Union Territory, Chandigarh Administration and others vs. Pradeep Kumar and another, (2018) 1 SCC 797 where it was held that, “It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S).34120 Arising out of SLP(C)No.102520 THE HON’BLE HIGH COURT OF MADHYA PRADESH & ORS RESPONDENT(S JUDGMENT ASHOK BHUSHAN J This appeal has been filed questioning the Division Bench judgment dated 06.01.2020 of the High Court of Madhya Pradesh dismissing the writ petition filed by the appellant. The appellant in the writ petition has prayed for quashing the orders dated 14.09.2018 18.07.2018 and 21.09.2019 by which appellant has been held not suitable for being appointed to the post of District Judgein the cadre of Higher Judicial Service by Direct Recruitment from amongst the eligible Advocates In pursuance to the advertisement the appellant submitted online application form. The appellant after being declared successful in the Main Examination was called for interview. The provisional select and waiting list was published in which the name of the appellant was included at Serial No.13 in the category of unreserved. The appellant received a communication on 06.04.2018 from the Law and Legislative Department informing that he has been selected for the post of District Judge and Examination cum Selection and Appointment Committee dated 18.07.2018 by which proceedings the appellant was not considered suitable for being appointed to the post of District Judge decided on 12.10.2018. He submits that the judgment of Mohammed Imran was also a case of a judicial officer who was directed by this Court to be given appointment. We have considered the submissions of the learned counsel for the parties and perused the records 10. The present is not a case where the name of the appellant was deleted in the select list on the ground of any concealment of criminal case against him. The appellant has brought on the record the proceedings of Examination cum Selection Committee dated 18.07.2018 At Item No.2 of the Agenda the Committee recorded the “ITEM NO.02.Consideration on the matter relates to Character Verification Reports of selected 13 candidates of MPHJS District Judge Entry Level)Exam 2016 & 2017 received from Law Department Bhopal for determination of their eligibility for the said post 1.Shri Anil Bhardwaj: Attestation Form submitted Shri Anil Bhardwaj and police verification report submitted by Deputy Commissioner of Police Special Branch New Delhi goes to show that FIR 852 2014 under Section 498A 406 34 of IPC has been registered against Shri Anil Bhardwaj on the basis of complaint filed by Smt. Pooja wife of Shri Anil Bhardwaj After due consideration resolved that a case against Shri Anil Bhardwaj under Section 498A 406 34 IPC is still pending before Rohini Court New Delhi. Therefore he is not considered suitable for being appointed to the post of District Judgeand Examination cum Selection and Appointment Committee and a resolution was taken that due to pendency of the case under Section 498A 406 34 IPC on the basis of complaint filed by the wife Smt. Pooja the appellant is not considered suitable for being appointed to the post of District Judge 11. Before the High Court the decision of the Committee dated 18.07.2018 as well as the order of the State dated 14.09.2018 for deleting the name of the appellant was challenged in the writ petition. The main issue to be considered was as to whether resolution dated 18.07.2018 suffered from error which requires judicial review by the High Court in exercise of jurisdiction under Article 226. The submission which has been pressed by the counsel for the appellant is that appellant’s case was required to be reconsidered in view of his subsequent acquittal on 18.09.2019 12. The recruitment to the Judicial Service is governed by the provisions of Madhya Pradesh Uchchatar Nyayik Seva Niyam 1994. This Court issued direction to all States to fill up the vacancies in subordinate Courts in a time schedule. The direction was issued by this Court in Malik Mazhar Sultanand another vs. Uttar Pradesh Public Service Commission and others 2008(17) SCC 703. The selection process for filling up the post of District Judge has to be completed by all the High Courts as per the time schedule fixed by this Court. After declaration of the merit list the candidates have to be given appointments in time bound manner so that they may join the respective posts. There is no dispute that on the date when the Committee declared the appellant unsuitable criminal case against him under Section 498A and 406 IPC was pending which was registered on a complaint filed by the appellant’s wife Smt. Pooja. The mere inclusion in the select list does not give an indefeasible right to a candidate. The employer has right to refuse appointment to the candidate included in the select list on any valid ground. The persons who occupy Judicial Service of the State are persons who are expected to have impeccable character and conduct It is not disputed that the criminal case under Section 498A and 406 IPC was pending at the time when the appellant applied for the recruitment when he appeared for the interview and when the result was declared. The character verification report was received from the State where pendency of the criminal case was mentioned which was the reason for the Committee to declare the appellant unsuitable. The submission which needs to be considered is that whether in view of the subsequent acquittal of the appellant his case was required to be reconsidered and he was entitled to be appointed. 13. This Court in Commissioner of Police New Delhi and another vs. Mehar Singh 7 SCC 685 while considering a case of antecedents verification for appointment into Delhi Police Service made the following observation in paragraph 35 “35. The police force is a disciplined force It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. ” 14. The observation was made by this Court in the above case that a candidate wishing to join the police force must be a person having impeccable character and integrity. The above observations apply with greater force to the Judicial Service. This Court further observed that even in the case of acquittal it has to be examined as to whether the person was completely exonerated in the case or not. In the present case the acquittal having taken place after the close of recruitment process there was no question of examining the acquittal order by the High Court at the time of finalizing the selection process. 15. Learned counsel for the appellant has referred to the judgment of this Court in Joginder Singh vs. Union Territory of Chandigarh and others 2 SCC 377 which was a case whether the appellant was acquitted by the trial court for a case under Section 148 149 323 325 307 IPC. In the above case acquittal took place even before the appellant was called for the interview medical examination. This fact was recorded in paragraph 24 of the judgment in the following words “24. However in the present case we have observed that the appellant was involved in a family feud and the FIR came to be lodged against him on 14 4 1998 after he had applied for the post of Constable. Further he had been acquitted on 4 10 1999 i.e. much before he was 16. The above case is clearly distinguishable and does not help the appellant. 17. A three Judge Bench of this Court in Avtar Singh vs. Union of India and others 8 SCC 471 had occasion to examine different aspects of verification form after selection including the question of having criminal antecedents and pending of criminal case. This Court laid down that in the event criminal case is pending and incumbent has not been acquitted employer may well be justified in not appointing such an incumbent. In paragraph 32 following has been laid “32. No doubt about it that once verification form requires certain information to be furnished declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However in a criminal case incumbent has not been acquitted and case is pending trial employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.” 18. Even in a case where candidates have been acquitted in criminal case it was held that the decision of the Screening Committee being not actuated by mala fide regarding suitability of the candidate is to be respected. This Court in Union Territory Chandigarh Administration and others vs. Pradeep Kumar and another 1 SCC 797 laid down following in paragraphs 13 and 17 “13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh 2013 7) SCC 685 and Parvez Khan 2015SCC 591 cases it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged it cannot be presumed that he was honourably acquitted completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust reposed in it and must examine the candidate with utmost 17. In a catena of judgments the importance of integrity and high standard of conduct in police force has been emphasised. As held in Mehar Singh case5 the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court in our view erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.” 19. Now we may notice the judgment of Mohammed Imran supra) which has been heavily relied by the learned counsel for the appellant. In the above case the appellant was selected for Judicial Service whose selection was cancelled on 04.06.2010 due to the character verification report of the Police. Writ petition was dismissed by the High Court. It was contended before this court that the appellant was acquitted of the charge under Sections 363 366 34 IPC on 28.10.2004 that is much before he cleared the examination for appointment in the year 2009. The appellant disclosed his prosecution and acquittal by the Sessions Court. This Court noticed the aforesaid fact in paragraph 9 of the judgment in the following It is an undisputed fact that one Shri Sudhir Gulabrao Barde who had been acquitted on 24.11.2009 in Case No.3022 of 2007 under Sections 294 504 34 IPC has been 20. This Court held that report received reveals that except for the criminal case in which he had already been acquitted the appellant has a clean record and there is no adverse material against him to deny him the fruits of his academic labour. This Court found decision rejecting the candidature of the appellant as untenable by making following observation in paragraph “11. In the entirety of the facts and circumstances of the case we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision blurred by the spectacle of what has been described as moral turpitude reflecting inadequate appreciation and application of facts also as justice may demand.” 21. There can be no dispute that in event it is found that decision by which the candidature of a candidate is rejected is arbitrary or actuated by malafide such decision can be interfered by the Constitutional Courts. We have already noticed the judgment of this Court in Union Territory Chandigarh Administration and others vs. Pradeep Kumar and anotherthat the decision of the Screening Committee must be final unless it is mala fide. 22. There can be no dispute to the above preposition But there can be other valid reasons for not sustaining the decision of Screening Committee Selection Committee apart from the ground of mala fide. Any arbitrary decision taken by the Selection Committee can very well be interfered by the Constitutional Courts in exercise of Judicial Review Jurisdiction. 23. Reverting to the facts of the present case the decision of Examination cum Section and Appointment Committee for holding the appellant unsuitable was based on the relevant consideration i.e. a criminal case against the appellant under Section 498A 406 34 IPC was pending consideration which was registered on a complaint filed by the wife of the appellant. Such decision of the Committee was well within the jurisdiction and power of the Committee and cannot be said to be unsustainable. The mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground to turn the clock backward 24. There being no infirmity in the decision dated 18.07.2018 of the Committee declaring the appellant unsuitable for the post and consequential decision taken by the State to delete the name of the appellant the High Court did not commit any error in dismissing the writ petition. The fact that subsequently the appellant was acquitted in the criminal case did not furnish sufficient ground for reconsidering the appellant for appointment on the post. 25. One more submission advanced by learned counsel for the petitioner needs also to be considered. The petitioner’s contention is that the decision declaring the petitioner unsuitable on the ground of pendency of criminal case under Section 498A 406 IPC was contrary to the guidelines issued by the Government of Madhya Pradesh for character verification dated 05.06.2003. He submits that as per paragraph 6(viii) of the guidelines on the acquittal on merit of the case by the Court the candidate will be eligible for Government service. He submits that the above clause of the Government Order has been breached in declaring the appellant 26. The guidelines dated 05.06.2003 has been issued by Government of Madhya Pradesh on the subject “regarding issuing of new guidelines for character verification.” Paragraph 6 which has been relied by the counsel for the appellant is regarding column 12 of the Attestation form. It is useful to extract paragraph 6 and clause viii) which are as follows: “6. The Column 12 of the attestation form filled for character verification by selected candidates for government service criminal background judicial case and the information about acquittal or conviction in it willfully or erroneously or ignorantly kept vacant subject to qualification for appointment in government service taking into consideration the policy as per rules by the state government with immediate effect decisions have been i) … … … viii) On the acquittal on merit of the case by the Hon’ble Court the candidate will be eligible for government service.” 27. Clause on which the reliance is placed contemplates that the candidate who has been acquitted on merit by the Court will be eligible for the Government service. The aforesaid contemplation relates to at the time of character verification. Thus at the time of character verification if a candidate is found to be acquitted on merits by the Court the candidate shall be treated to be eligible for Government Service The above clauseas quoted above cannot come to the rescue of the appellant who at the time of character verification or at the time of consideration of the case of the appellant by the committee on 18.07.2018 had not been acquitted. Had the appellant in column 12 had mentioned about the acquittal or at the time of character verification it was found that the candidate has been acquitted on merit by the Court Clause 6(viii) would have been attracted but in the present case the said clause is not attracted since at the time of character verification the appellant had not been acquitted and he was acquitted after more than a year from rejection of his candidature 28. Learned counsel for the appellant lastly has contended that due to deletion of the name of appellant from select list a stigma is attached to him for removal of which this Court may issue notice in this SLP. As noted above the appellant having already been acquitted by the judgment dated 18.09.2019 stigma of criminal case has already washed out and the criminal case having resulted in acquittal no stigma is attached to the appellant’s name on the above ground. The apprehension of the learned counsel for the appellant that a stigma shall continue with the name of the appellant is misconceived stigma if any is already over by acquittal 29. We thus are of the view that the High Court did not commit any error in dismissing the writ petition The appellant was not entitled for any relief in the writ petition. In the result while dismissing this appeal we observe that stigma if any of the criminal case lodged against appellant under Section 498A 406 34 IPC is washed out due to the acquittal of the appellant vide judgment dated 18.09.2019. [ASHOK BHUSHAN [M.R. SHAH NEW DELHI OCTOBER 13 2020

Fishing restrictions imposed under Rule 17(7) of the TN Marine Fishing Regulation Rules are not unlawful or discriminatory- Madras High Court

In such view of the matter, we do not find any violation of the constitutional provision, rather an identical issue, as raised by the petitioner was brought before the Apex Court in the case of State of Kerala (supra), wherein a challenge to the similar restriction or prohibition was not accepted even in reference to Article 19(1)(g) of the Constitution of India. These were discussed by the bench of Hon’ble Mr. Munishwar Nath Bhandari & Hon’ble Mr. Justice P. D. Audikesavalu in the case of PoomPuhar Traditional Fishermen Welfare Association V. The State of Tamil Nadu & Anr (W.P.No.430 of 2022). The crux of the case is the petitioner seeks a direction on respondents 1 and 2 to allow traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting such prohibition/ban stipulated in Rule 17(7) of the Tamil Nadu Marine Fishing Regulation Rules, 1983 incorporated vide G.O.Ms.No.36, Animal Husbandry, Dairying and Fisheries (FS-4), dated 17.02.2020. Learned counsel for the petitioner submits that all neighbouring States are permitting fishing without any prohibition or restriction as imposed by the State of Tamil Nadu. In view of the above and in the absence of similar set of legislation in other States, a discrimination has been made and, accordingly, a direction is sought to allow the traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu by lifting the prohibitions as stated in Rule 17(7) of the 1983 Rules. Learned Government Pleader has cited the judgment of the Apex Court in the case of State of Kerala v. Joseph Antony, ((1994) 1 SCC 301) to support his arguments. The challenge to the similar prohibition was not accepted by the Apex Court even in reference to Article 19(1)(g) of the Constitution of India. The bench of Hon’ble Mr. Munishwar Nath Bhandari & Hon’ble Mr. Justice P. D. Audikesavalu observed and stated while referring to the case of State of Kerala v. Joseph Antony, (1994) 1 SCC 301 that in view of the judgment of the Apex Court in the case of State of Kerala (supra) on the same issue, which is binding, even if the other neighbouring States have not imposed similar restrictions, we do not propose to interfere with the prohibition/ban imposed in the State for the object sought to be achieved. From the judgment of the Apex Court in the case of State of Kerala (supra), it becomes clear that a similar prohibition exists in the State of Kerala. Thus, the statement of learned counsel for the petitioner that there was no similar restriction or prohibition in the State of Kerala cannot be accepted. For the foregoing reasons, we find no illegality or unconstitutionality in Rule 17(7) of the 1983 Rules which imposes prohibition/ban on using certain varieties of nets. Accordingly, the writ petition fails and it is dismissed. No costs. Consequently, W.M.P.No.487 of 2022 is closed.

W.P.No.4322 IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.01.2022CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE P.D.AUDIKESAVALUW.P.No.4322PoomPuhar Traditional Fishermen Welfare Associationhaving its Registered Office at1437 North Street Poombukar Kaveripattinam Kizhaiyur Sirkzhi Taluk Nagapattinam District Tamil Nadu Pin 609 105rep. by the Secretary of the SocietyJambulingam Kabadikunju....Petitioner Vs1.The State of Tamil Nadu Through its Chief Secretary Fort St. George Govt. Secretariat Chennai Tamil Nadu.2.The Principal Secretary Animal Husbandry Dairying & Fisheries Department Fort St. George Govt. Secretariat Chennai Tamil Nadu.____________https: www.mhc.tn.gov.in judis W.P.No.43223. The Union of India Through the Principal Secretary Office of the Hon ble Prime Minister of India South Block New Delhi 110 001.4.The Secretary Ministry of Law Government of India Shastri Bhavan Dr.Rajendra Prasad Road New Delhi 110 001.5.The Principal Secretary Ministry of Agriculture Krishi Bhawan Dr.Rajendra Prasad Road New Delhi 110 001....RespondentsPrayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents 1 and 2 to allow the traditional fisherman of Tamil Nadu to carry the purse seine net in their country crafts and mechanized vessels for Marine Fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting the prohibitions and banning of carry the purse seine net in the country crafts and the mechanized vessels for marine fishing in the sub rule 7 of rule 17 of the Tamil Nadu Marine Fishing Regulation Rules 1983 vide G.O.Ms.No.36 Animal Husbandry and Dairying and Fisherieson 17.02.2020.For the Petitioner:Mr.J.Sushil Rajkumar For the Respondents:Mr.P.MuthukumarState Government Pleaderfor respondent Nos.1 and 2____________https: www.mhc.tn.gov.in judis W.P.No.4322ORDER(Order of the Court was made by the Hon ble Acting Chief Justice)By this writ petition the petitioner seeks a direction on respondents 1 and 2 to allow traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting such prohibition ban stipulated in Rule 17(7) of the Tamil Nadu Marine Fishing Regulation Rules 1983incorporated vide G.O.Ms.No.36 Animal Husbandry Dairying and Fisheriesdated 17.02.2020.2. For ready reference Rule 17(7) of the 1983 Rules is quoted hereunder: “17. Regulation on use of gear....(2) ...(3) ...(4) ...(5) ...____________https: www.mhc.tn.gov.in judis W.P.No.4322(6) ...(7) No owner or master of any fishing vessel shall carry on fishing by pair trawling or fishing with purse seine net using any fishing vessel or craft whether country craft or mechanized boat irrespective of their size and power of the engine in the entire coastal area of the State.”3. Learned counsel for the petitioner submits that all neighbouring States are permitting fishing without any prohibition or restriction as imposed by the State of Tamil Nadu. In view of the above and in the absence of similar set of legislation in other States a discrimination has been made and accordingly a direction is sought to allow the traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu by lifting the prohibitions as stated in Rule 17(7) of the 1983 Rules.4. Learned counsel for the petitioner has made a specific reference to the regulations in existence in the State of Kerala where no restrictions as imposed by the State of Tamil Nadu exist. ____________https: www.mhc.tn.gov.in judis W.P.No.43225. Learned Government Pleader has contested the writ petition and submits that the prohibition imposed in Rule 17(7) of the 1983 Rules is not unconstitutional rather similar prohibition is in existence in other States. In reference to the State of Kerala learned Government Pleader submits that similar prohibition exists and even a challenge to it before the Apex Court did not sustain. He further submits that the object sought to be achieved by issuance of the Government Order is in consonance with the scheme of the Animal Husbandry Dairying and Fisheries Department. Earlier a Government Order dated 25.03.2000 was issued prohibiting fishing by pair trawling or fishing with purse seine nets by any fishing vessels craft whether country craft or mechanical boat irrespective of the size or power of the engine in the entire coast of Tamil Nadu in territorial waters. The prohibition as referred to under Rule 17(7) of the 1983 Rules is in operation since 25.03.2000. The only difference is earlier it was by way of a government order whereas now it is in the form of a Rule. The challenge to Rule 17(7) of the 1983 Rules has been made ignoring the aforesaid and without giving any justification as to why the Government Order dated 25.03.2000 was not challenged by the ____________https: www.mhc.tn.gov.in judis W.P.No.4322petitioner for years together when the same prohibition was imposed and existing.6. Learned Government Pleader further submits that a writ petition being W.P.No.171718was filed to seek enforcement of G.O.Ms. No.40 Animal Husbandry and FisheriesDepartment dated 25.03.2000 and the said writ petition was disposed of by the order dated 04.09.2018 after issuing directions for enforcement of the Government Order. 7. Learned Government Pleader has cited the judgment of the Apex Court in the case of State of Kerala v. Joseph Antony reported in1 SCC 301 to support his arguments. The challenge to the similar prohibition was not accepted by the Apex Court even in reference to Article 19(1)(g) of the Constitution of India. The judgment in the case of the State of Keralacovers the issue. There the fishing vessels were not allowed to operate within 10 kilometres till reconsideration of the issue. The fishing by mechanized ____________https: www.mhc.tn.gov.in judis W.P.No.4322vessels in territorial waters by use of purse seine ring seine pelagic trawl and mid water trawl in territorial waters was prohibited. Highlighting the judgment in the case of State of Keralaa prayer is made by learned Government Pleader to dismiss the writ petition.8. We have considered the rival submissions and perused the materials on records.9. Rule 17(7) of the 1983 Rules was incorporated by Government Order dated 17.2.2020. But the prohibition was in operation from 25.03.2000 namely for more than 20 years. In view of the above the respondent State has not introduced a new prohibition but only incorporated it in the form of a rule. It was otherwise for the object sought to be achieved and as narrated in the judgment in the case of S.HarikrishnanDepartment dated 25.03.2000 prohibiting fishing by ____________https: www.mhc.tn.gov.in judis W.P.No.4322pair trawling or fishing with Purse Seine nets by any fishing vessels craft whether country craft or mechanical boat irrespective of the size or power of the engine in the entire coast of Tamil Nadu in territorial waters as a measure to conserve the area of fishing. Provision of the Tamil Nadu Marine Fishing Regulation Act 1983 empowers the Government to regulate restrict or prohibit certain matters and in the present case according to the petitioner Section 5(c) andof the said Act would apply.5. It is the further case of the petitioner that in boats where 50 to 60 persons are engaged they threatened and bet fishermen in small boats and in some cases they were thrown out of their boats catamarans and thus harassed them. It is also the submission of the writ petitioner that those who use bigger boats also use modern equipments to trace fishes and make full catch without any provision for small fishermen. Though on several occasions several complaints were made the authorities have turned deaf ears and not taken any action.”The reason for imposition of prohibitions has been given in the paragraphs quoted above. It is not only to save small fishermen but also to avert death of dolphins and tortoises etc. and to promote ____________https: www.mhc.tn.gov.in judis W.P.No.4322breeding of small fish.10. In such view of the matter we do not find any violation of the constitutional provision rather an identical issue as raised by the petitioner was brought before the Apex Court in the case of State of Keralawherein a challenge to the similar restriction or prohibition was not accepted even in reference to Article 19(1)(g) of the Constitution of India. The relevant paragraph of the said judgment is quoted for ready reference:“28. By monopolising the pelagic fish stock within and by indiscriminate fishing in the territorial waters they are today denying the vast masses of the poor fishermen their right to live in two different ways. The catch that should come to their share is cordoned off by the giant closely meshed gears leaving negligible quantity for them. Secondly the closely meshed nets kill indiscriminately the juvenile with the adult fish and their eggs as well. That is preventing breeding of the fish which is bound in course of time to lead to depletion and extinction of the fish stock. There is thus an imminent threat to the source of livelihood of the vast section of the society. The State is enjoined ____________https: www.mhc.tn.gov.in judis W.P.No.4322under Article 46 of the Constitution in particular to protect the poor fisherman population. As against this the respondent operators are not prohibited from fishing within the territorial waters. They are only prohibited from using certain types of nets viz. purse seines ring seines pelagic and mid water trawls. There is therefore no restriction on their fundamental right under Article 19(1)(g) to carry on their occupation trade or business. They cannot insist on carrying on their occupation in a manner which is demonstrably harmful to others and in this case threatens others with deprivation of their source of livelihood. Since in the circumstances the protection of the interests of the weaker sections of the society is warranted as enjoined upon by Article 46 of the Constitution and the protection is also in the interest of the general public the restriction imposed by the impugned notifications on the use of the gears in question is a reasonable restriction within the meaning of Article 19(6) of the Constitution.”[emphasis supplied]11. In view of the judgment of the Apex Court in the case of ____________https: www.mhc.tn.gov.in judis W.P.No.4322State of Keralaon the same issue which is binding even if the other neighbouring States have not imposed similar restrictions we do not propose to interfere with the prohibition ban imposed in the State for the object sought to be achieved. From the judgment of the Apex Court in the case of State of Keralait becomes clear that a similar prohibition exists in the State of Kerala. Thus the statement of learned counsel for the petitioner that there was no similar restriction or prohibition in the State of Kerala cannot be accepted.12. In fact in the case of S.Harikrishnanthis court in reference to the Government Order dated 25.03.2000 imposing prohibition of the similar nature or of the same nature as now under challenge issued direction for effective implementation of the Government Order dated 25.03.2000. A challenge made to the Government Order dated 25.03.2000 was dismissed by a Division Bench of this court vide judgment dated 05.02.2019 in W.P.No.31319of the 1983 Rules has been enacted in tune with the ____________https: www.mhc.tn.gov.in judis W.P.No.4322judgment in the case of S.Harikrishnanof the 1983 Rules does not offend any of the constitutional provisions and each State is empowered to prescribe its own policy for fishing.13. For the foregoing reasons we find no illegality or unconstitutionality in Rule 17(7) of the 1983 Rules which imposes prohibition ban on using certain varieties of nets. Accordingly the writ petition fails and it is dismissed. No costs. Consequently W.M.P.No.4822 is closed.(P.D.A. J.) 19.01.2022 Index : Yes Nobbr____________https: www.mhc.tn.gov.in judis W.P.No.4322To:1.The Chief Secretary State of Tamil Nadu Fort St. George Govt. Secretariat Chennai Tamil Nadu.2.The Principal Secretary Animal Husbandry Dairying & Fisheries Department Fort St. George Govt. Secretariat Chennai Tamil Nadu.3. The Principal Secretary Union of India Office of the Hon ble Prime Minister of India South Block New Delhi 110 001.4.The Secretary Ministry of Law Government of India Shastri Bhavan Dr.Rajendra Prasad Road New Delhi 110 001.5.The Principal Secretary Ministry of Agriculture Krishi Bhawan Dr.Rajendra Prasad Road New Delhi 110 001.____________https: www.mhc.tn.gov.in judis W.P.No.4322M.N.BHANDARI ACJAND P.D.AUDIKESAVALU J.bbr W.P.No.4322 19.01.2022____________

The compensation amount of land must be decided in accordance with the market value of the land: Orissa High Court

It was found that all the reasons to extend benefits to the present Appellants (Claimants) in the matter of determination of compensation for their acquired land. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Justice D. Dash in the matter of Dukhi Shyam Rout Vs. Special Land Acquisition Officer [LAA NO.42 OF 2012].  The facts of the case were associated with an appeal filed under section 54 of the Land Acquisition Act condemning the judgment passed by the Single Judge on 19.05.2012. The original claimant of the said case died during proceedings before the Referring Court and his legal representatives filed the instant appeal and hereinafter they are referred to as the Appellants. The respondents for the purpose of the Lanjigarh Road Junagarh Rail Link project acquired the land of Mouza Dunguriguda owned by the appellant. The land officer awarded compensation for the acquired land. Upon receiving the compensation, the appellants under protest filed a petition and sought an increase of compensation as the compensation of the land compared to its market value was too low. The Referral Court accordingly directed the respondents to pay the compensation as per the market value for the acquired land. It was also stated that the Appellants were entitled at the minimum to the compensation in consonance with the said determination of the compensation. Counsel for the respondents stated that the compensation was determined on the basis of the evidence available on record and that it was not permissible to determine the market value of the acquired lands of the present Appellants.   The Hon’ble Court considering all the submissions and facts stated that “Keeping in view the facts and circumstances, it is felt necessary in the interest of justice to direct the Referral Court that upon deposit of the amount as aforesaid by the Respondents; 80% of the same would be kept in unnumberable and non-pledgeable long term Fixed Deposit of ten years at the minimum in the name of the Appellants (Claimants) upon due apportionment amongst them in accordance with their shares in any Nationalized Bank with monthly interest payable to them through their Savings Bank Accounts and the rest 20% shall be paid to the Respondents (claimants) by keeping the same in deposit in their Savings Bank Accounts in the said Bank where the Fixed deposit would be kept.” Therefore, the appeal stands disposed of. 

IN THE HIGH COURT OF ORISSA CUTTACK LAA NO.42 OF 2012 In the matter of an appeal under section 54 of the Land Acquisition Act assailing the judgment dated 19.05.2012 passed by the learned Senior Civil Judge Bhawanipatna in L.A.R. No.709. Dukhi Shyam Routthrough his L.Rs.) :: VERSUS :: Special Land Acquisition Officer Lanjigarh Road Junagarh Appellants Rail Link Project & Others : Respondents. Advocate(s) who appeared in this case by Hybrid ArrangementMode: For Appellants M s.Sidhartha Das P.R. Singh and S.K. Mishra Advocates For Respondent : M s. Miss Kalpana Pattnaik & D. Rath AdvocatesTHE HON’BLE MR. JUSTICE D.DASH Date of Hearing ::18.11.2021 :: Date of Judgment.23.11.2021 The Appellants by filing this Appeal under section 54 of the Land Acquisition Acthave assailed the judgment award dated 19.05.2012 passed by the learned Civil Judge Bhawanipatna in L.A.R. No.709 in the matter of A reference under section 18 of the 2 = L.A. Acthas been acquired by the Respondents for the purpose of Lanjigarh Road Junagarh Rail Link project. The Land Acquisition Officer has awarded compensation of Rs.1 00 053 for the acquired lands. The Appellants having received the said assessed compensation under protest filed a petition seeking enhancement of the compensation claiming therein that the market value of the land as taken by the Land Acquisition Officer for the purpose of assessment of the compensation is too low. They claimed that the market value of the land acquired would be about Rs.3 to 4 lakhs per acre. They further claimed that for the severance of the land owned by them in a patch in view of the acquisition they are also entitled to sum of Rs. 2.00 lakhs which has not been taken into account. In view of the demand raised by the Appellants Claimants) claiming higher compensation for their acquired land the matter stood referred to the Referral Court under section 18 of the L.A Act for determination of just and proper consideration for said acquired land. The above claim of the Appellants was resistd 3 = by the Respondents before the Referral Court. The Appellants examined three witnesses. They have also proved certain documents of which important are the two orders passed by the same Referral Court on 11.12.1992 in MJC No. 31 of 1992 and the order passed by this Court in First Appeal No. 32 of 1992. The Respondents on the other hand have examined one witness while proving the document i.e. the work sheet of that village Dunguriguda. The Referral Court going to determine the just and proper compensation for the acquired land on the date of publication under section 4(1) of the L.A. Act i.e. dated 17.8.1994 has finally determined the market value of the acquired land at the rate of Rs.50 000 per acre. Accordingly the Respondents have been directed to pay the compensation for the acquired land computing the same at the said rate for the total extent of land acquired with all other statutory benefits as available. Learned counsel for the Appellantsat the outset inviting the attention of the court to the certified of the judgment award dated 31.7.2010 passed by the said Referral Court in MJC No. 197 of 1997 as also the letter dated 9.9.2014 with the enclosure issued by the Respondent No. 1 in response to the letter of the Appellantsindicating therein that the compensation for the acquired land involved in MJC No. 197 of 1997 and as has been determined by the Referral Court has already been paid to those claimants therein pointed that the 4 = award as has been passed in the said case has been fully satisfied. It may be stated here that said documents being filed in Court have been taken on record. Placing reliance of the above judgment award passed by the Referral Court prior to the passing of the judgment award which has been impugned in this Appeal and in view of the payment of the said compensation amount he contended that when the land involved in the present proceeding had been acquired under the same notification dated 17.8.1994 and as also those are of same kissam and being similarly situated located the Appellants Claimants) are entitled at the minimum to the compensation in consonance with the said determination of the compensation in MJC No. 1997. Inviting the attention to the factual settings of the present case as well as the one involved in MJC No. 1997 as well as concerning the case he submitted that when in that case those claimants have been paid with compensation being assessed taking the market value of the land at Rs.2 02 400 per acre for the Bahal kisam of land and Rs.96 000 per acre for the other kisams of lands i.e. Berna Mala Atta and Kheta Adi the same market value has to be taken as the guide for determination of the compensation of the lands for these Appellants involved in the present proceeding. Learned counsel for the Respondent No.2 without disputing 5 = the determination of the compensation for the land involved in MJC No. 197 of 1997 and the factum of payment of the said compensation to the Appellants claimants therein as it reveals from the certified copy of judgment award contended that the said market value as has been determined by the Referral Court in that case has been on the basis of the evidence available on record therein and that it is not permissible to determine the market value of the acquired lands of the present Appellants taking that as the basis. Keeping in view the submission made I have carefully gone through the judgment award dated 19.5.2012 which has been impugned in the present Appeal as well as the judgment award passed in MJC No. 197 of 1997 disposed of on 31.7.2010. It reveals that the land ad measuring Ac.5.31 decimals of Bahal Berena Mala Atta and Kheta Adi kissam under eight plots in one khata of Mouza Dunguriguda owned by the Appellants have been acquired by notification No. 36617 R dated 17.8.1994. The reference under section 18 of the L.A. Act numbered as MJC No. 1997 was concerning the land measuring Ac.05.75 decimals under nine plots in one khata of that very Mouza Duguriguda. These lands had also been acquired pursuant to the notification No. 36617 R dated 17.8.1994 and for the same purpose of construction of Lanjigarh road Junagarh Rail Link project. In that case the Referral Court has determined the market value of Ac.3.20 decimals of Bahal kisam of land at Rs.2 02 400 6 = per acre and other kisams i.e. Berna Mala Atta Kheta Adi at Rs.96 000 per acre. The undisputed position thus emerges that almost same extent of lands of same kisams as involved in the present reference were also the subject matter in the reference answered on 31.7.2001 in MJC No. 197 of 1997. The documents reveal that the judgment award passed in MJC No. 197 of 1997 has been further challenged by this Respondent No. 2 and the same has been fully satisfied by way of payment of the compensation in terms of the determination made in the said reference to the claimants therein. Here is a case where the large chunk of land of different kisams owned by the Appellants have been acquired and thereby it is well inferable that the Appellantsby such acquisition has not only lost their lands but also have been deprived of that source of income for all times to come in future. When other land owners of the village whose lands have been acquired for the same purpose under the same notification have been paid with the compensation at the enhanced rate as aforestated it does not stand to reason as to why the same standard would not be applied for determining the compensation towards the lands of the Appellants which have been acquired and they be not paid accordingly. In fact the statement governing the field in order to remove the discriminatory treatment to the land loosers for the acquisition of the land under one notification is contained in the provision of 7 = section 27(A) of the LA Act that even a land looser who has not sought for the reference for enhancement of compensation would be entitled to get similar treatment in the assessment of the compensation for the acquisition of his land and payment thereof if the compensation is determined at a higher rate in a reference made at the instance of another land looser whose lands have been acquired under the same notification in case he moves the Competent Authority within thirty days of passing of the award in the reference provided of course the land are of same quality and attached with same benefits etc. The Appellantssince are pursuing the matter of enhancement of compensation by carrying Appeal challenging the judgment award stating that the determination of market value has been made on a lower side and compensation awarded is thus liable to be enhanced this Court finds all the reasons to extent the same benefit to the present the matter of determination of compensation for their acquired land and payment thereof in consonance with the determination of the compensation as has been made in MJC No. 197 of 1997 and paid to the claimants therein. In that view of the matter this Court holds that the Appellants are entitled to get the compensation for Bahal kisam of land at Rs. 2 02 400 per acre and rest kisams of lands at the rate of Rs. 96 000 per acre. The Compensation for the extent of acquired land being computed in the aforesaid rate be 8 = paid to the Appellantswith all other statutory benefits as available within four months hence failing which the same would carry further interest @ 9% per annum till payment. Accordingly the Appeal stands disposed of. Keeping in view the facts and circumstances it is felt necessary in the interest of justice to direct the Referral Court that upon deposit of the amount as aforesaid by the Respondents 80% of the same would be kept in unecumberable and non pledgeable long term Fixed Deposit of ten years at the minimum in the name of the Appellants upon due apportionment amongst them in accordance with their shares in any Nationalized Bank with monthly interest payable to them through their Savings Bank Accounts and the rest 20% shall be paid to the Respondents claimants) by keeping the same in deposit in their Savings Bank Accounts in the said Bank where the Fixed deposit would be kept D. Dash J.

Alleged of threatening and second marriage with the informant, the petitioner was denied pre-arrest bail by the Court: High Court Of Patna

Petitioner was alleged of hiding their already existing marriage of his and had entered into a false relationship with the informant. He had also married the informant and threatened her on knowing about the truth. The Court denied the pre-arrest bail to the petitioner and said that the case may be considered for bail matter on its own merits in the future. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Akhilesh Singh v. The State of Bihar[Criminal Miscellaneous No. 40409 of 2020].  The facts of the case were that the petitioner was apprehended arrest under Section 420, 376, and 506 of the Indian Penal Code. It was alleged against the petitioner that the informant had earlier married a man and had 2 children from him. After whose death they came to know each other on Facebook and had fallen in love. It was further stated that they had a physical relationship with each other. The informant added that they were in touch with each other and that the petitioner had put the vermilion on her forehead as well. Later on, the informant came to know that he was already married to someone else and when she raised her voice she was threatened. The petitioner submitted that the informant who had pursued the relationship with the petitioner and further that she was fully aware of the circumstances. It was submitted that because there may have been some contact between the parties but that was purely consensual and the informant was trying to extract money from the petitioner due to which she has lodged this false case. Learned counsel for the informant submitted that she being the mother of two children, could not have entered into such relationship as it is against natural human behavior and further that the petitioner did not need to put vermilion on her forehead in a temple as that was what had made her confident that the petitioner had married her. The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioner.” The Pre-Arrest Bail was denied by the Court and the Petition was dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 404020 Arising Out of PS. Case No. 15 Year 2020 Thana MAHILA PS District Aurangabad Akhilesh Singh @ Akhilesh Kumar aged about 35 years Male Son of Hiranandan Singh Resident of village Yadavpur PO Pirouta PS Ara Mufassil District Bhojpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. N K Agrawal Senior Advocate with Mr. Uday Kumar Advocate Mr. Rajendra Nath Jha APP Ms. Mukul Kumari Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 03 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 29.07.2021 which was allowed. 3. Heard Mr. N K Agrawal learned senior counsel along with Mr. Uday Kumar learned counsel for the petitioner Mr Rajendra Nath Jha learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State and Ms. Mukul Kumari learned counsel for the informant. 4. The petitioner apprehends arrest in connection with Aurangabad Mahila PS Case No. 120 dated 16.07.2020 Patna High Court CR. MISC. No.404020 dt.03 08 2021 instituted under Sections 420 376 and 506 of the Indian Penal 5. The allegation against the petitioner is that the informant was earlier married to Munna Singh who died in the year 2016 leaving behind two children aged 6 and 4 years and then she came in contact through Facebook with the petitioner and both are said to have fallen in love. Further it has been stated that the petitioner who is a constable in the Border Security Force called her to Mughalsarai on 24.10.2019 and there she lived and also had physical relationship. The informant has stated that the next day the petitioner had put vermilion on the forehead of the informant in a temple and they were in regular touch on mobile and further that on 21.06.2020 the petitioner had come to Aurangabad and lived with her for 10 days and went back on 01.07.2020 and when on 02.07.2020 she contacted the petitioner on his mobile he disclosed that he was already married and he also threatened her 6. Learned counsel for the petitioner submitted that from the FIR it transpires that it was the informant who had pursued the relationship with the petitioner and further that she was fully aware of the circumstances. It was submitted that because there may have been some contact between the parties but Patna High Court CR. MISC. No.404020 dt.03 08 2021 that was purely consensual and the informant was trying to extract money from the petitioner due to which she has lodged this false case. It was submitted that the petitioner has no other criminal 7. Learned APP submitted that the informant being a young widow could not have entered into a casual relationship and from the circumstances it is clear that false assurance was given and the petitioner had physically abused the informant 8. Learned counsel for the informant submitted that she being the mother of two children could not have entered into such relationship as it is against natural human behaviour and further that there was no occasion for the petitioner to put vermilion on her forehead in a temple as that was what had made her confident that the petitioner had married her. Further it was submitted that her family members are aware of the development and now she is being disowned by them and is isolated in her family also for having developed relationship with the petitioner. It was further submitted that the conduct of the petitioner was from the beginning not bona fide as he only wanted to have physical relationship with the informant Patna High Court CR. MISC. No.404020 dt.03 08 2021 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioner 10. Accordingly the petition stands dismissed 11. However in view of submission of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

Donating daughter to a Baba held illegal as daughter not a property : Bombay High Court

The issue whether a father can legally donate his girl child to a Baba by executing a Danpatra was before consideration of a bench of Bombay High Court consisting of Justice Vibha Kankanwadi in the matters between Shankeshwar @ Shambhu s/o Bhausaheb Dhakne and Anr. v. State of Maharashtra & Anr.BA-1366-2021 and 1345-2021 decided on 3.1.2022. The facts of the case are that two accused had raped a minor girl child in a garden of the temple stay where she used to live with her father as disciples of a Baba for over a decade.The victim reported the incident and both the accused were arrested.Therefore, an application for bail was moved in this court. The counsels for the applicant contended that In their application, the applicants stated that the girl had filed a lawsuit against them under the influence of the ‘Baba’ residing with the girl and her father. It is alleged that the father and his followers will use drugs and intoxicants and involve the youth in the neighborhood. It is stated that the village held a Gram Sabha where the decision was taken to remove Baba with his disciples from the temple buildings along with the victim girl for influencing the youth in the village to consume narcotic drugs. They claimed they were inadvertently involved in the case because they supported the decision to eliminate Baba. The counsels for the respondent contended that the girl filed a FIR under the provisions of IPC and  POCSO Act after the girl filed a complaint with the police and raped her by outraging the her modesty. Judge Kankanwadi released both defendants on bail based on the filing of the indictment, implying that the investigation was complete and thus the applicants did not need to be detained. In the donation agreement, the court asked the victim’s father to explain his position in a statement. After much delay, the Court noted that the person presenting the affidavit was not the person identified in the criminal complaint as the victim’s father. It was noted that after the girl’s mother died, her father gave the girl up for adoption in 2018, who signed the declaration and was executed but the process has not yet been followed. The father’s lawyer was also unable to explain why a document called ‘Danpatra’ was executed. The Bombay High Court held that the act of a father who “donated” his daughter to a father while hearing a bail request from the defendant who sexually abused the 17-year-old is completely illegal. The court stated that the girl child is not a property that can be donated. Considering the actions of the girl’s father while performing “Danpatra”, it can be said that this Court should intervene. Considering the future of the girl and this should not be referred to any illegal activity, the Court instructed the Child Welfare Agency to investigate the girl expeditiously and ascertain if she was fit for being declared a child in need of care and protection. Click here to read the judgement

on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.1366 OF 2021Shankeshwar @ Shambhu s o Bhausaheb Dhakne… Applicant Versus1. The State of Maharashtra2. XYZ… Respondents…WITHBAIL APPLICATION NO.1345 OF 2021Sopan s o Sarjerao Dhakne… Applicant Versus1. The State of Maharashtra2. XYZ… Respondents…Mr. S. S. Thombre Advocate for the applicant in BA 1366 2021.Mr. P. P. More Advocate for applicant in BA 1345 2021.Mr. N. T. Bhagat APP for the respondent State in both matters.Ms. Shital E. Waghmare Advocate for respondent No.2 in both matters....CORAM:SMT. VIBHA KANKANWADI J.Reserved on : 21.12.2021Pronounced on : 03.01.2022ORDER : .The applicants are the accused persons who have been arrestedin connection with Crime No.2821 registered with BadnapurPolice Station Dist. Jalna for the offences punishable under Sections376 376(D) 341 323 of Indian Penal Code and under Sections 4 6 8and 12 of the Protection of Children from Sexual Offences Acton 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtafter referred to as the “”POCSO Act”).2.Heard learned Advocate Mr. S. S. Thombre for the applicant inBail Application No.13621 learned Advocate Mr. P. P. More forthe applicant in Bail Application No.13421 learned APP Mr. N. T.Bhagat for the respondent State in both matters and learned AdvocateMs. Shital E. Waghmare for respondent No.2 in both matters.3.It has been submitted on behalf of the applicants that theapplicants have been falsely implicated. The victim informant who isstated to be 17 years old girl states that she resides with her father whois devotee in Mahadev Temple. She was proceeding at about 4.00 p.m.on 13.08.2021 on a scooter owned by one Baba near her house at thattime she was stopped by both the applicants. She was dragged nearMosambi garden. After outraging her modesty they had ravished her.Thereafter she was allowed to go. It is in fact outcome of the actionstaken by the present accused persons. Affidavits have been filed beforethe learned Additional Sessions Judge stating as to what the applicantshave done and what the villagers had done with the Baba under whoseinfluence the informant and her father was doing. Said Baba along withsome other disciples were given shelter in the temple premises itselfabout 9 to 10 years prior to the incident. It was assured by him and his(2) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtdisciples that they would carry the Pooja and other activities in thetemple. All was going on well for about 2 to 3 years but thereafter misbehavior of the Baba and his disciples started. They used to consumeGanja Bhaang and slowly they started collecting youth from the villagefor such activities. Even a Gramsabha was organised on 09.03.2021 andit was decided that said Baba and other disciples along with the victimshould be asked to leave the temple premises. Thereafter the saidaction carried forward and said Baba and others were asked by theGrampanchayat to leave the premises. The said resolution which waspassed in the Gramsabha was seconded by one of the accused. Thephotocopy of the proceeding book and complaint that was given to thepolice patil about the illegal activities those were carried out by saidBaba in the temple premises has been attached. 4. It was also submitted on behalf of the applicants that theinvestigation is over and charge sheet is filed on 21.09.2021. The furtherphysical custody of the applicants is not required. The entire charge sheet does not show the birth date evidence though in the FIR she hasgiven her birth date. Under such circumstance the provisions of POCSOAct are not applicable prima facie. As regards the medical opinion isconcerned there were absolutely no signs on the body of the girl whichwould indicate that the act was forcible. The final opinion can be given(3) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtafter the receipt of CA report since the girl was aged below 20 at thattime. Though the medical papers say that the age of the girl is 17 years9 months yet on 06.09.2021 a reminder was given by the investigatingofficer to the medical officer for his opinion in view of the fact that theX ray report gives her age between 17 to 19 years. Therefore with thiskind of evidence the applicants need not be asked to remain in jail.They are ready to abide by the terms of the bail. 5.Per contra the learned APP as well as the learned Advocate forrespondent No.2 vehemently submitted that there is ample evidencecollected against the applicants. The act done by the applicants isheinous. The victim had given her date of birth in her FIR itself and thatwas sufficient though at this stage the radiological age of the girl isstated to be between 17 to 19 years yet the date of birth can be provedat the time of trial. Further the learned Advocate for respondent No.2has filed a photocopy of Aadhar card of victim which is now marked asExhibit ‘X’ showing the same date of birth as stated by her in the FIR.The girl in categorical terms has stated that she has been ravished byboth the applicants and supported by her own statement on oath underSection 164 of the Code of Criminal Procedure. Case is not made out torelease the applicants on bail. on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt6.In the FIR though the victim informant had given her age andthe date of birth the investigating officer has not collected anydocumentary proof. She could have produced her Aadhar card beforethe investigating officer also. It was tried to be contended that thefather of the girl used to go from one place to another and therefore there is no record of her birth with any municipal authorities. Thefather of the girl stays with the Baba along with the girl’s brother. In herfirst information report she says that she was ravished on the same dayof FIR. She had disclosed the said fact to one Sanjay Rathod. It is to benoted that when the name of Sanjay Rathod could be revealed by her on13.08.2021 the statement of that person has been recorded on17.08.2021. The distance between the place of offence and LaxmanNagar Tanda where this witness stays is not on record right now butthen he says that he was knowing the victim since prior to the incident.If we consider the medical evidence it states that the hymen wasruptured however it is also stated that she was menstruating at thattime. The medical officer could not find any injury to geneteria however there was some tenderness on the chest. It is then stated thatthe medical officer cannot exclude the possibility of sexual assault yetthe final opinion appears to have been reserved till the CA report. TheCA reports have not been produced along with the charge sheet. Since(5) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtthe charge sheet has been filed the physical custody of the applicants isnot required for the purpose of investigation. 7. Though the defence of the applicants appear to be the fact thatthey had taken active part in holding of Gramsabha and a resolution hasbeen passed by the Grampanchayat that the priest in the temple who isstated to be the Baba with whom the father of the girl is residingconsumed narcotic drugs and he is driving certain persons to theaddiction and therefore he should be asked to leave the templepremises. Such complaint was made to the police officer also on11.03.2021. The affidavits filed by various persons in support of theapplicants giving history as to what prompted them to have theGramsabha and take the decision that the said Baba and his disciplesshould be removed from that place. This aspect will have to be noted. 8.Now the investigation is over. Charge sheet is also filed. Takinginto consideration the evidence that has been collected this would bethe fit case to release the applicants on bail however with stringentconditions. 9.Before parting a fact which has come on record through therespondent No.2 is worth noting and disturbing. Photocopy of thedocument styled as ‘Danpatra’ on stamp paper of Rs.100 executed on(6) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt29.08.2018 between the father of the girl and the Baba has beenproduced. It is stated that the father of the girl has given his daughter indonationto the Baba and it is stated that the said Kanyadan hasbeen made in presence of the god. When the girl as per her ownstatement is minor then why the father who is in all respect guardian ofthe girl should give the girl as Daan A girl is not a property which canbe given in donation. In view of this disturbing fact this Court hadgiven directions to the respondent No.2 to file an affidavit about theincident. On 20.12.2021 a statement was made by the learnedAdvocate for the respondent No.2 that though this Court by order dated08.12.2021 had asked the father of the victim to file the affidavit hehad not contacted her for drafting the affidavit but he informed thelearned Advocate that he is unwell and he is admitted to hospital inJalna. This Court then asked the learned APP to collect the informationas to whether the information given to the Court is correct eitherthrough the investigating officer or any responsible officer of the rank ofDeputy Superintendent of Police. The report was given by theinvestigating officer that in view of the order when he went to the placeof the victim he could find the victim and her father as well as the Babain the temple. Thus a misguiding statement was made before the Court.However affidavit has been filed before this Court on 21.10.2021.(7) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtPerusal of the said affidavit would show that it is filed by Baba and notby respondent No.2 i.e. the father of the girl because the charge sheetgives different name of father of the girl. In view of Section 228(A) ofthe Indian Penal Code which prohibits disclosure of identity of thevictim of the offences this Court is constrained not to disclose not onlythe victim’s name but also the name of her parents. But certainly theaffidavit that has been filed appears to be by the Baba who is not thefather of the victim. However if it is filed by the father of the victimwhose name has been given in the charge sheet then it can be seen thathe was aged 91 years on the date of affidavit. He says that he is thefather of the girl. The mother of the girl had expired long back and thenhe had given his daughter in adoption to Baba on 29.08.2018.Interestingly the name of the person to whom the daughter has beengiven in adoption is the same to that of the person who has filed theaffidavit i.e. affiant. The learned Advocate for the respondent No.2 hasnot even taken care while drafting the affidavit that it should be in theproper name. The affiant therefore further states that proper adoptiondeed has not been executed and the adoption process will be followed.He says that the girl is residing with him as on today. In fact when theopportunity was given to explain all the circumstances he has not statedas to what prompted him to give the girl in adoption. It was even orally(8) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtasked to the learned Advocate for the respondent No.2 as to underwhich provisions of law the said adoption has been done. She tried tocontend that it is as per the Hindu Adoption and Maintenance Act. But taking into consideration the fact that the said act gives eligibilitycriteria whether this could have been done is a question and if it wasadoption then why the document styled as “Danpatra” has beenexecuted. There is no explanation for the same in the affidavit. ThisCourt is concerned with the future of the minor girl and in view of suchdocument coming forward can’t shut the eyes. This drives the Court toconsider the definition of the words child in need of care and protectionas defined in Section 2(14) of the Juvenile JusticeAct. Further this Court considers the provisions of Section29 of the said Act which gives powers to the Child Welfare Committee.Section 29 of the said Act runs thus : “29. Powers of Committee : on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt“(ii)conducting inquiry on all issues relating toand affecting the safety and well being of the childrenunder this Act ..(iv)conducting inquiry for declaring fit personsfor care of children in need of care and protection ”10.Therefore under these circumstances this would be the fit casewhere the directions need to be given to Child Welfare Committee Jalnato hold inquiry on expeditious basis in respect of the girl and to find outwhether she is a fit person to be declared as a child in need of care andprotection. At the cost of repetition it can be said that in view of theactions taken by the father of the girl in executing “Danpatra” this Courtis required to interfere. This is in view of the future of the girl and sheshould not be driven to do any illegal activities. With theseobservations following order is passed : ORDERI)Bail Applications stand allowed.II)The applicant Shankeshwar @ Shambhu s o BhausahebDhakne in Bail Application No.13621 applicant SopanSarjerao Dhakne in Bail Application No.13421 who havebeen arrested in connection with Crime No.2821 registeredwith Badnapur Police Station Dist. Jalna for the offencespunishable under Sections 376 376(D) 341 323 of Indian Penal(10) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtCode and under Sections 4 6 8 and 12 of the POCSO Act bereleased on P. R. Bond of Rs.50 000 with two solvent sureties ofRs.25 000 each.III)The applicants shall not tamper with the evidence of theprosecution.IV)They shall not indulge in any criminal ActivityV)Bail before the Trial Court.VI)The Child Welfare Committee Jalna is directed to hold aninquiry on expeditious basis in respect of the girl i.e.victim informant and to consider whether the girl child is fit to bedeclared as child in need of care and protection. The investigatingofficer is directed to make available the copy of the charge sheetto the Child Welfare Committee. Further the Registrarscm(11)

In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour: High Court Of Chhattisgarh

The court was of the view that the appellant had established sufficient cause for his non-appearance as his counsel had noted the wrong date. Such an opinion was held by The Hon’ble High Court Of Chhattisgarh before The Hon’ble Shri Deepak Kumar Tiwari in the matter of Bagas Ram Verma Vs. Sanjay Kumar [MA No. 91 of 2019].  The facts of the case were associated with an appeal against an order passed by the 1st Additional District Judge, Rajnandgaon dated 30.01.2019 wherein the application by the appellant was rejected under Rule 13 of CPC. A civil suit was filed by the respondent against the appellant for recovery of the amount. Without giving any opportunity to the appellant, the said suit was decided ex-parte. It was noticed that during the proceedings of the trial court, the appellant who was supposed to appear was absent while his counsel appeared on behalf of him. It was submitted that the appellant was not aware of the date of the hearing and due to the misunderstanding the ex-parte order was passed. It was stated that the respondent denied the averment of the appellant and contended that the appellant had intentionally not appeared before the Court. Later, the Trial Court dismissed the application of the appellant since he did not appear in the proceedings or had shown any cogent reason to remain ex-parte in the civil suit.  Considering all the facts, The Hon’ble Court stated that “Therefore, looking to the facts and circumstances, this court is of the view that the appellant has established the sufficient cause for his non-appearance as his counsel has noted wrong date in his diary and so he has also not informed him, hence the application under Order 9 Rule 13 of Code of Civil Procedure is deserves to be allowed and accordingly allowed… Resultantly, the Appeal is allowed…”

1NAFRHIGH COURT OF CHHATTISGARH BILASPUR MA No. 919Order Reserved On : 18 10 2021 Order Passed On : 01 11 2021Bagas Ram Verma S o Lt. Shri Gaindu Ram Verma Aged About 50Years R o Village Rahud P.S. And Tah. Khairagarh DistrictRajnandgaon Chhattisgarh. At Present R o Sisly Matale Gali Ward No. 05 Rajnandgaon Tah. And District Rajnandgaon Chhattisgarh...(Judgment Debtor Applicant) AppellantVersus Sanjay Kumar S o Lt. Shri M.L. Kannoje Aged About 40 YearsOccupation Government Service R o Gandhi Chowk Ward No. 33 Tah. And District Rajnandgaon Chhattisgarh....(Decree Holder NonApplicant) Respondent For Appellant : Shri Rakesh Thakur Advocate. For Respondent: None though served.Hon ble Shri Deepak Kumar Tiwari J C A V Order1.The appellant has preferred this present Appeal against the order dated 30.1.2019 passed by the 1st Additional District Judge Rajnandgaon in MJC No.13 2017 whereby the application under Order 9 Rule 13 of the CPC moved by the appellant has been rejected.2.Facts of the case are that the respondent herein has filed the civil suitviz. Civil Suit No.2 B 2014 against the appellant for recovery ofamount. The said suit was decided ex parte on 18.11.2016 withoutgiving opportunity to the appellant. 23.It was the stand of the appellant that in the proceeding before the trialCourt he was supposed to appear however his counsel was appearing.It was further pleaded by the appellant that he was not aware about thedate of hearing on 18.11.2016 and his counsel also could not appear.Because of misunderstanding the ex parte order has been passed. Hecame to know about the ex parte order on 2.12.2016 and applied forcertified copy on the same day and filed an application under Order 9Rule 13 of the CPC. 4.The respondent has also filed his reply to the said application anddenied the averment of the appellant and pleaded that the appellant hasintentionally not appeared before the trial Court when the matter wascalled for recording the plaintiff’s evidence. He further pleaded thatthe application of the appellant is false and fabricated and as such theapplication should be dismissed.5.The trial Court has dismissed the application of the appellant filed underOrder 9 Rule 13 of the CPC holding that the appellant has not assignedor shown any cogent reason to remain ex parte in the civil suit and alsodid not appear on the subsequent dates also. The appellant was havingsufficient time to recall the ex parte order.6.Heard learned counsel for the appellant and perused the record.7.Considering the facts of the case the plaint was instituted on02.01.2014 for recovery of loan amount and defendant has alsosubmitted his written statement and contested the suit and on the dateof hearing on 18.11.2016 defendant’s contention is that his counselcould not appear because of misunderstanding his counsel has notedwrong date in his diary hence exparte order has been passed he came 3to know about the exparte decree on 02.12.2016 and applied forcertified copy and filed application under Order 9 Rule 13 of the C.P.C.for setting aside the Exparte decree passed on 18.11.2016. Appellanthas also filed affidavit in support of his application. The Plaintiff Nonapplicant has opposed his application. 8.In the matter of United Bank of India v. Naresh Kumar {A.I.R. 1997S.C. 3} it was observed as under: "there is sufficient power in the Courts under theCode of Civil Procedure to ensure that injusticeis not done to any party who has a just case. Asfar as possible a substantive right should not beallowed to be defeated on account of aprocedural irregularity which is curable." 9.In G.P. Srivastava vs Shri R.K. Raizada & Ors {(2000) 3 SCC 54} ithas been observed thus : “7. Under Order 9 Rule 13 CPC an ex partedecree passed against a defendant can be setaside upon satisfaction of the Court that eitherthe summons were not duly served upon thedefendant or he was prevented by any “sufficientcause” from appearing when the suit was calledon for hearing. Unless “sufficient cause” isshown for non appearance of the defendant inthe case on the date of hearing the court has nopower to set aside an ex parte decree. The words“was prevented by any sufficient cause fromappearing” must be liberally construed to enablethe court to do complete justice between theparties particularly when no negligence orinaction is imputable to the erring party.Sufficient cause for the purpose of Order 9 Rule13 has to be construed as an elastic expressionfor which no hard and fast guidelines can beprescribed. The courts have a wide discretion indeciding the sufficient cause keeping in view thepeculiar facts and circumstances of each case.The “sufficient cause” for non appearance refersto the date on which the absence was made aground for proceeding ex parte and cannot be 4stretched to rely upon other circumstancesanterior in time. If “sufficient cause” is made outfor non appearance of the defendant on the datefixed for hearing when ex parte proceedingswere initiated against him he cannot bepenalised for his previous negligence which hadbeen overlooked and thereby condoned earlier.In a case where the defendant approaches thecourt immediately and within the statutory timespecified the discretion is normally exercised inhis favour provided the absence was not malafide or intentional. For the absence of a party inthe case the other side can be compensated byadequate costs and the lis decided on merits.”10.Therefore looking to the facts and circumstances this court is of theview that the appellant has established the sufficient cause for his nonappearance as his counsel has noted wrong date in his diary and so hehas also not informed him hence the application under Order 9 Rule 13of Code of Civil Procedure is deserves to be allowed and accordinglyallowed. 11.Resultantly the Appeal is allowed and the impugned order dated30.01.2019 passed in M.J.C. No. 13 2017 by first Additional DistrictJudge Rajnandgaon & exparte decree passed in C.S.No. 2B 2014 dated18.11.2016 are hereby set aside on payment of costs of Rs. 5 000 tothe other side. 12.The parties are directed to appear before the trial court for furtherdirections on 26.11.2021. Sd JudgeBarve

Sentence of imprisonment must be modified in accordance with period of incarceration already undergone: Kerala High Court

The sentence of imprisonment imposed by the court must be modified in accordance with the period of incarceration already undergone. Therefore, while sentencing a person for imprisonment or upholding the judgment of the lower court in an appeal, the appellant court must consider the term of imprisonment already undergone by the convicted person. This principle was upheld by the Kerala High Court presided by J. Bechu Kurian Thomas in the case of CHERKULATH SURESH vs THE STATE OF KERALA & anr. [CRL.A.No.297 OF 2007]. The appellant i.e. the accused possessed Ethyl Alcohol 23.68% by volume and was found guilty for the offence under Section 8(1) of the Abkari Act; sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months by judgment dated 23.01.2007. The prosecution alleged that on 24.12.2004, the Excise Circle Inspector, found the accused in possession of five litres of illicit arrack carried by him for sale in a can. On noticing the existence of a case exclusively triable by a Court of Session, the learned Magistrate referred the case to the Court of Sessions. The learned counsel for the appellant vehemently contended that no independent witnesses who were examined to prove the seizure of the contraband article from the accused and that the witness turned hostile and though questions were put to him by the prosecution, nothing beneficial to the prosecution were elicited. The learned counsel enthusiastically canvassed that in such circumstances, the benefit of doubt, atleast, must be given to the accused.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY THE 05TH DAY OF FEBRUARY 2021 16TH MAGHA 1942 CRL.A.No.297 OF 2007 AGAINST THE ORDER DATED 23 01 2007 IN SC 358 2005 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.IIIMANJERI APPELLANT ACCUSED CHERKULATH SURESH AGED 34 YEARS S O. KUMARAN CHERKULATH PACHATTIRI AMSOM PERIYAPPURAM DESOM BY ADV. SRI.K.M.SATHYANATHA MENON BY ADV. ARUN KUMAR RESPONDENTS COMPLAINANT & STATE THE EXCISE INSPECTOR EXCISE RANGE OFFICE TIRUR THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA HIGH COURT BUILDINGS HIGH COURT ROAD ERNAKULAM KOCHI 682 031 BY PUBLIC PROSECUTOR ADV.DHANIL M.R THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03 02 2021 THE COURT ON 05 02 2021 DELIVERED THE FOLLOWING CRL.A.No.297 OF 2007 Dated this the 5th day of February 2021 The appellant is the accused in SC.No.358 2005 on the files of the Additional Sessions Court Fast Track Court No.III Manjeri. He was found guilty for the offence under Section 8(1 of the Abkari Act and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 00 000 in default to undergo simple imprisonment for six months by judgment dated 23.01.2007. The appellant assails the aforesaid conviction and 2. The prosecution alleged that on 24.12.2004 at around 6.50 a.m. the Excise Circle Inspector while on patrol duty found the accused in possession of five litres of illicit arrack carried by him for sale in a can. After completing the formalities and arrest of the accused the crime was registered. After completion of investigation and other statutory requirements the final report was filed. On noticing the existence of a case exclusively triable by a Court of Session the learned Magistrate referred the case to the Court of 3. In order to prove the prosecution case PWs 1 to 5 CRL.A.No.297 OF 2007 were examined and Exts.P1 to P8 were marked apart from material objects MO1. After analysing the evidence adduced in the case the learned Sessions Judge found the accused guilty and convicted him and imposed the sentence as mentioned earlier 4. I have heard Adv.K.M.Sathyanatha Menon along with Ad.Arun Kumar as well as the learned Public Prosecutor Adv.Dhanil 5. The learned counsel for the appellant vehemently contends that the prosecution case cannot be believed at all since there are no independent witnesses who were examined to prove the seizure of the contraband article from the accused. He also pointed out that though PW1 was examined to prove the seizure of the contraband articles from the appellant he turned hostile and though questions were put to him by the prosecution nothing beneficial to the prosecution were elicited. The learned counsel enthusiastically canvassed that in such circumstances the benefit of doubt atleast must be given to the accused 6. The learned Public Prosecutor on the other hand argued that the case of the prosecution was clearly proved in the instant case and that there was no basis for the contention of the appellant that he should be given the benefit of doubt CRL.A.No.297 OF 2007 7. I have considered the rival contentions. On 24.12.2004 the accused was alleged to have been apprehended by the Excise Inspector and his team of officers who were on patrol duty. Even though PW1 turned hostile to the prosecution and denied of having seen the seizure of arrack from the accused the evidence of official witnesses are convincingly clear that the accused was apprehended along with the arrack. In spite of severe cross examination the official witnesses stood firm regarding the seizure of arrack from the accused. In the aforesaid circumstances I am of the view that the finding of the trial court that even though PW1 had turned hostile there was sufficient evidence to prove the seizure of the contraband from the accused. PWs 2 and 3 have also clearly spoken to about the manner in which the accused was found possessing a can containing arrack and the manner in which the accused was apprehended. I agree with the said conclusion arrived at by the learned Sessions Judge. 8. It is seen from Ext.P6 forwarding note that the same was prepared on 24.12.2004 with the sample seal of PW5 and it was presented before the Judicial First Class Magistrate s Court Tirur on the same day itself. Though MO1 was returned for safe custody the sample was retained by the court and was forwarded to the Regional CRL.A.No.297 OF 2007 Chemical Examiners Laboratory later. Thus no procedural infirmity could be found out and the prosecution had clearly proved that the sample taken from MO1 was sent for chemical analysis resulting in Ext.P7 certificate. Ext.P7 states that the sample involved in the offence showed the presence of Ethyl Alcohol having 23.68 by volume. The Learned Sessions Judge after an elaborate consideration of the entire materials and the evidence adduced in the case concluded that the accused has committed the offence alleged against him. After appreciating and considering the evidence adduced in the case I am of the view that the learned Sessions Judge was justified in concluding that the accused is guilty of the 9. The learned counsel for the appellant in the alternative had argued that the sentence of imprisonment imposed upon the accused is too harsh in the nature of the case that was alleged against him. It was also pointed out that the incident occurred more than 15 years ago and that the quantity involved was only minimal and that after the incident involved in this case there had been no allegations of involvement of the appellant in a crime of any nature. 10. On an appreciation of the aforesaid submissions of the learned counsel for the appellant I am of the view that taking CRL.A.No.297 OF 2007 into reckoning the long passage of time and also taking note of the fact that the appellant had already undergone incarceration from 24.12.2004 till 07.02.2005 a modification can be made to the sentence imposed. The sentence of imprisonment imposed upon the appellant shall therefore stand modified to the period already undergone. The fine amount imposed by the learned Sessions Judge being the minimum fine provided under law the same is affirmed. In the aforesaid circumstances while confirming the conviction of the appellant under Section 8(1) of the Abkari Act the sentence of imprisonment imposed by the learned Sessions Judge is modified to the period already undergone. However the sentence of fine imposed and the default sentence imposed by the learned Sessions Judge stands affirmed The appeal is allowed in part as above. Sd BECHU KURIAN THOMAS JUDGE

It is necessary that the matters alleged to be defamatory must be stated in the complaint: High Court of Tripura

It is the obligation upon the complainant, at least to reproduce the substance of defamatory statements or words of imputation in gist alleged to have been uttered to enable the accused to know the nature of the allegations that he has to meet in trial. This was held in Sri Subal Kumar Dey V. Sri Gora Chakraborty & Ors[CRL REV. P NO.02 OF 2018] in the High Court of Tripura by single bench consisting of JUSTICE ARINDAM LODH. Facts are that Petitioner was charged under S.500/501 IPC. The petitioner has thus filed criminal revision petition challenging the order passed by the learned Sessions, affirming the judgment passed by the learned SDJM, wherein the petitioner was sentenced to a fine for the offenses under Section 500/ 502(b) IPC. The counsel for petitioner contended that there is nothing in detail in the averments, in the complaint or in the sole statement with reference to the imputation. Both the Courts below have failed to appreciate that ingredients of Section 499 Cr.P.C.were not met. The counsel for respondent contended that there is no need to reproduce the contents of imputation published  and prayed for upholding the judgment and order of conviction and sentence passed by the Sessions court. The court discussed the essentials requirements for a trial for defamation and made reference to the Apex court judgment in Balraj Khanna vs. Motiram, where in the court had held that, “The purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the Court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore, it is to his interest to get a proper adjudication from the Court that as far as possible the words spoken or the statements actually made and which h e alleges to be defamatory are before the Court. … From the point of view of accused also it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable the accused to know the nature of the allegations that they have to meet.” The court also referred to the judgement of Konath Madhavi Amma vs S.M. Sherief And Anr., wherein the Kerala High Court had made following observations, “in the absence of the imputation constituting the offense of defamation in the complaint, the Court cannot enter the complaint on defamation as the mere allegations contained in the complaint without imputation would not be sufficient for the accused as he is entitled to know about the imputation to face the charge.”

Page 1 HIGH COURT OF TRIPURA CRL REV. P NO.02 OF 2018 Sri Subal Kumar Dey son of late Chandi Charan Dey Owner Editor Printer & Publisher of Syandan Patrika 41 Sakuntala Road Agartala West Tripura … Petitioner Versus 1. Sri Gora Chakraborty son of late Anil Chakraborty resident of Office Tilla P.S. Bishalgarh District Sepahijala Tripura 2. The State of Tripura Secretary Home to the Government of Tripura Agartala Capital Complex Agartala West Tripura .. Respondents : For Petitioner(s) For Respondent(s) Date of hearing Date of delivery of judgment Whether fit for reporting : Mr. SC Majumder Advocate Mr. S. Chakraborty Advocate Mr. S. Debnath Addl. PP Yes HON’BLE MR. JUSTICE ARINDAM LODH JUDGEMENT AND ORDER This criminal revision petition has been filed challenging the judgment and order dated 29.07.2017 passed by the learned Sessions Judge West Tripura Agartala in case no. Criminal Appeal 39 of 2014 affirming the judgment and order dated 17.05.2014 passed by the learned SDJM Bishalgarh Sepahijala in case No. CR 08 of 2009 wherein the petitioner was sentenced to a fine of Rs. 5 000 for the offence punishable under Section 500 IPC with default stipulation and further sentenced to pay a fine of Rs. 5 000 for the offence punishable under Section 502(b) IPC with default stipulation. Page 2 Briefly stated Sri Gora Chakraborty being the Secretary of Bishalgarh Sub Divisional Committee a wholetime activist of Communist Party of India has filed a complaint alleging that he has been defamed by the publication of some news item published in „Syandan The petitioner is the Publisher Editor and Printer of the said publication. The complaint petition was filed and later on it was taken into record after examination of the complainant under Section 200 Cr.P.C. The petitioner appeared before the learned SDJM Bishalgarh after receipt of summon. Charge was framed against the petitioner under Section 500 501 IPC to which the petitioner pleaded not guilty and claimed to be tried. In course of trial the complainant adduced 8 witnesses including himself. The petitioner being the accused did not adduce any evidence. After closure of the prosecution evidence the petitioner was examined under Section 313 Cr.P.C. to which the petitioner pleaded his innocence and denied to adduce any evidence on his behalf. Having heard the learned counsel and on consideration of the evidences and materials brought on record the learned trial court convicted and sentenced the accused petitioner as aforestated. Being aggrieved the accused petitioner preferred an appeal before the court of learned Sessions Judge West Tripura Agartala. The learned Sessions Judge after hearing the parties had affirmed and upheld the judgment and order of conviction and sentence returned by the learned trial court. Hence the accused petitioner has challenged the said judgment and order of conviction and sentence by means of filing the present revision petition before this court. Heard Mr. SC Majumder learned counsel appearing for the petitioner as well as Mr. S. Chakraborty learned counsel appearing for the respondent complainant. Also heard Mr. S. Debnath learned Additional PP appearing for the respondent State. Page 3 Mr. Majumder learned counsel for the accused petitioner primarily urged that there is nothing detail in the averments either in the complaint or in the sole statement with reference to the imputation which was said to be contained in the article published in „Syandan Patrika‟ dated 22.09.2008 and 02.10.2008 but both the Courts below have failed to appreciate these primarily ingredients of Section 499 Cr.P.C. while returning the findings of conviction and sentence imposed upon the accused. Mr. Majumder learned counsel has drawn my attention to paragraph 7 of the complaint filed by the complainant respondent which is reproduced hereunder for convenience: “That on 22nd September 2008 a news item had been published in the Syandan Patrica a leading daily newspaper of Tripura against the complainant and Sri Kajal Bhowmik with malicious intention and in that news a totally false and fabricated story had been published against the complainant. According to that publication the said complainant had been alleged for giving political support to one Jayanta Paul who was a worker of the concerned L.P.G. Bottling Plant at Bishalgarh and with the help of that political support the said Jayanta Paul had allegedly started to create different nuisances and illegal and immoral activities in the said Plant during the office hours”. Mr. Majumder learned counsel has further submitted that the same contents are reproduced in his sworn statement. On the other hand Mr. S. Chakraborty learned counsel for the complainant respondent has submitted that there is no need to reproduce the contents of imputation published in the newspaper for the reason that those imputations are well founded in the newspaper itself. As such the learned counsel for the complainant respondent has prayed for upholding the judgment and order of conviction and sentence passed by the courts below. It is settled law that a person cannot be said to have committed an offence under Section 500 IPC merely because some articles or news items are published attributing certain utterances to that person. Unless it is shown that the imputation or mentionable words had been used by the Page 4 accused and only at his instance the said objectionable words were published the accused cannot prima facie said to have committed the offence punishable under Section 500 IPC. In a trial for defamation it is quite essential that the details of imputation containing the words alleged to be defamatory in character should be precisely set out in the complaint itself. It is the said imputation or the words so set out in the complaint that will constitute the foundation for defamation. In a defamation case the only document containing the accusation of offences supplied to the accused is the complaint. By issuance of process to the accused he is called upon to answer the accusation relating to the imputation containing defamation mentioned in the complaint. In other words cause of action is the accusation with reference to the imputation alone. What is required further is only adducing evidence by the complainant in support of those accusations. Therefore the accused is entitled to know what are the accusations with regard to the imputation made against him then only he will be able to answer the accusations and shape his defence. Learned counsel appearing on behalf of the complainant respondent to counter the submission of learned counsel for the appellant has strongly emphasized that the accused being the Editor and Publisher of the newpaper is well aware of the imputation he made through his newspaper but according to me this submission is not in accordance with the established principle of law. It is required by law that from the complaint itself the accused is entitled to know what are the accusations which formulated the basis of the complaint. The complainant of a defamation case is under legal obligation to state the parts of the news item or publication which has defamed him. Page 5 A similar question arose before the apex court in a defamation case where the Supreme Court held in Balraj Khanna vs. Motiram 3 SCC 399] in the following terms: The purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the Court by the complainant are held to be not defamatory it will mean that the complainant will have to lose. Therefore it is to his interest to get a proper adjudication from the Court that as far as possible the words spoken or the statements actually made and which h e alleges to be defamatory are before the Court. ... From the point of view of accused also it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable the accused to know the nature of the allegations that they have to Following the above judgment the Kerala High Court also in Konath Madhavi Amma vs. S.M. Sheriffhas held that in the absence of the imputation constituting the offence of defamation in the complaint the Court cannot enter the complaint on defamation as the mere allegations contained in the complaint without imputation would not be sufficient for the accused as he is entitled to know about the imputation to face the charge. 14) The very same principles have been laid down in Laloo Prasad vs. State of Bihar and another Crimes 498 Patna H.C.). Again the Supreme Court in Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathiand Madras High Court in Karthikeyan vs. S. AnanthanarayananCrimes 44) held that in the absence of necessary averment containing the imputation constituting the ingredient of defamation the complaint could not be said to be valid in law. In the light of the above principles if we look at the contents of the complaint it is clear that the complainant in para 7 has only stated that “news item as published in the newspaper of the accused has levelled allegation against the complainant for giving political support to one Jayanta Paul who was the worker of the concerned LPG Bottling station of Bishalgarh and with the help of that political support the said Jayanta Pal Page 6 had allegedly started to create different nuisances and illegal and immoral activities in the said Plant during the office hours”. In the entire complaint there is total absence of any statement even in substantial measures which part of the publication and what are those words which allegedly caused imputation. Thus it is clear that the complaint lodged by the complainant could not fulfill the basic requirement of Section 500 IPC. The learned trial court during inquiry under Section 200 Cr.P.C. examined the complainant only and recorded his sworn statement. Even in his sworn statement he has simply referred to the articles. The complainant also did not make any averment in the complaint that the words used by the accused were too many or the statements made are too long with incapacitated him to reproduce the words or statements of imputation in the complaint. In Balraj Khanna the Apex Court held that from the point of view of accused also it is necessary that the matters alleged to be defamatory in the complaint must be stated as to enable him to know the nature of the allegations that he has to meet. In view of this in my opinion it is the obligation upon the complainant atleast to reproduce the substance of defamatory statements or words of imputation in gist alleged to have been uttered to enable the accused to know the nature of the allegations that he has to meet in trial. It is revealed from the proceeding before the learned trial court that the complainant did not make any endeavour to rectify the defect in the complaint by way of incorporating the imputation alleged to have been made by the accused in his newspaper. As such in my opinion the accused had been deprived of knowing the actual allegation levelled against him to which he had to meet in course of trial. Another striking feature is that none of the witnesses adducing evidence in support of the complainant has stated in their deposition that the imputation made in the publication had harmed the reputation of the Page 7 complainant directly or indirectly in their estimation and had lowered the moral or intellectual character of the complainant in respect of his political activity. What the witnesses have only stated are that the news items are false and published only to disrepute the complainant. This nature of evidence should be considered in the light of Explanation of Section 499 of the IPC. Moreso mere statement that the complainant was providing political support to some person that encouraged the said person to involve in immoral activities does not per se falls within the scope and ambit of Section 499 IPC because such statement cannot be said to be defamatory or derogatory by any sort of imagination as contemplated under Section 499 of IPC. For the reasons discussed and stated here in above in my opinion the entire proceeding before the learned trial court as well as before the learned appellate court was vitiated and the judgment and order of conviction and sentence imposed by the courts below are liable to be set Accordingly the judgment and order of conviction and sentence dated 29.07.2017 passed by the learned Sessions Judge West Tripura Agartala in case no. Criminal Appeal 314 affirming the judgment and order dated 17.05.2014 passed by the learned SDJM Bishalgarh Sepahijala in case No. CR 009 stand set aside and quashed. In the result the instant criminal revision petition is allowed and thus disposed off. saikat

Petition is disposed of with liberty to respondent to approach AT-MCD in accordance with law : High Court of Delhi

Petitioner seeks a direction against the respondent-Corporation to demolish the alleged unauthorized structure raised by respondent no. 2 and 3 and was held by the High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE SANJEEV SACHDEVA  in the case of VINEETA SINGH VERMA vs. SDMC & ORS (W.P.(C) 12376/2021) on 09 th March, 2022. Brief facts of the case are that Petitioner seeks a direction against the respondent-Corporation to demolish the alleged unauthorized structure raised by respondent no. 2 and 3 in respect of the first floor Flat No. 6/6213, Sector-C, Vasant Kunj, New Delhi and Flat No. C-6215, Sector-C, Pocket-VI, Vasant Kunj, New Delhi. Learned Counsel for Respondent submits that the construction is unauthorized, same has been booked and even a demolition order passed. And submits that a regularization application was filed by respondent no. 2, however the same has already been rejected on the ground that the major portion of the unauthorized construction is not capable to regularization as per the building bye-laws. Learned counsel submits that the demolition action has been proposed for 14th and 15th March, 2022 against the unauthorized construction carried out by respondent no. 2 and 3 and said respondents are in Canada and they are likely to come to India on 14.03.2022. He prays that the demolition action be deferred for a period of 10 days to enable the said respondents to approach the Appellate Tribunal-MCD against the order of demolition and also the order of rejection for regularization application. Learned counsel submits that the application for regularization has been wrongly rejected and further the construction is protection under the Delhi Laws (Special Provisions) Act, 2006.This is disputed by learned counsel appearing for the petitioner. Keeping in view the fact that the respondent-Corporation has already initiated action against the unauthorized construction, this petition is disposed of with liberty to respondent no. 2 and 3 to approach the AT-MCD in accordance with law. The Court opined that the Corporation shall defer the demolition action for a period of two weeks from today to enable the respondent no. 2 and 3 to avail of their remedy before AT-MCD. It is clarified that this protection shall be available to the said respondents for a period of two weeks or listing of the appeal whichever is earlier. It is further clarified that AT-MCD shall consider the appeal, if any, filed in accordance with law without being influenced by anything stated in this order.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 09th March 2022 W.P.(C) 12376 2021 VINEETA SINGH VERMA Petitioner SDMC & ORS. Respondents Advocates who appeared in this case: For the Petitioner : Mr. Pratyush Sharma Advocate. For the Respondents: Mr. Rakesh Mittal Standing Counsel with Ms. Yamini Mittal and Mr. Ajay Harshana Advocates for SDMC R 1 Ms. Archana Sahadeva Advocate for R 2 CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J CM APPL. 11854 2022 Issue notice. Notice is accepted by learned counsel appearing for the parties. For the reasons stated in the application the application is allowed. Petition is taken up today for consideration. The next date 23.03.2022 is cancelled. W.P.(C) 12376 2021 Petitioner seeks a direction against the respondent Corporation W.P.(C) 12376 2021 to demolish the alleged unauthorized structure raised by respondent no. 2 and 3 in respect of the first floor Flat No. 6 6213 Sector C Vasant Kunj New Delhi and Flat No. C 6215 Sector C Pocket VI Vasant Kunj New Delhi. Learned counsel appearing for the respondent Corporation submits that the construction is unauthorized same has been booked and even a demolition order passed. Learned counsel further submits that a application was filed by respondent no. 2 however the same has already been rejected. He submits that the same has been rejected on the ground that the major portion of the unauthorized construction is not regularizable as per the building bye laws. Learned counsel submits that the remedy of the respondent no. 2 and 3 if any against the action taken by the Corporation is before the Appellate Tribunal MCD. Learned counsel submits that the demolition action has been proposed for 14th and 15th March 2022 against the unauthorized construction carried out by respondent no. 2 and 3. Learned counsel appearing for respondent no. 3 submits that W.P.(C) 12376 2021 14.03.2022. said respondents are in Canada and they are likely to come to India on Learned counsel appearing for respondent no. 2 prays that the demolition action be deferred for a period of 10 days to enable the said respondents to approach the Appellate Tribunal MCD against the order of demolition and also the order of rejection for regularization application. Learned counsel submits that the application for regularization has been wrongly rejected and further the construction is protection under the Delhi LawsAct 2006.This is disputed by learned counsel appearing for the petitioner. 10. Keeping in view the fact that the respondent Corporation has already initiated action against the unauthorized construction this petition is disposed of with liberty to respondent no. 2 and 3 to approach the AT MCD in accordance with law. It is directed that the Corporation shall defer the demolition action for a period of two weeks from today to enable the respondent no. 2 and 3 to avail of their remedy before AT MCD. It is clarified that this protection shall be available to the said respondents for a period of two weeks or listing of the appeal W.P.(C) 12376 2021 whichever is earlier. Continuation of interim protection thereafter shall be subject to the orders to be passed by the AT MCD. It is further clarified that AT MCD shall consider the appeal if any filed in accordance with law without being influenced by anything stated in this order. 14. The petition is disposed of in the above terms. MARCH 9 2022 SANJEEV SACHDEVA J W.P.(C) 12376 2021

The Court hearing the plaint can extend the period of limitation on justified reasons. – Madras High Court

We find that the written statement cannot be closed on the ground of limitation alone. Rather, in appropriate cases, the limitation can be extended. It would, however, not be that in all cases, extension should be granted. Rather, if no justification is given, the Court can refuse to extend the period of filing the written statement. These were discussed by the double bench of Hon’ble Mr. Munishwar Nath Bhandari, Acting Chief Justice & The Hon’ble Mr. Justice P. D. Audikesavalu in Straight line Cinemas v. Dream Warrior Pictures (OSA (CAD) Nos.167 & 168 of 2021) The crux of the case herein is challenges are made to the order dated 13.07.2021 holding that the appellant-defendant has lost its rights to file the written statement and the judgment dated 01.10.2021 decreeing the suit filed by the plaintiff-non-appellant respectively. After service of notice in the suit, the appellant-defendant entered appearance through counsel. However, the written statement could not be filed due to the situation obtaining at the relevant time. Ignoring the aforesaid, the right of the appellant-defendant to file the written statement was closed by the order dated 13.07.2021 and therefore, the order has been challenged herein. Learned counsel for the appellant submits that the plaint was filed in the year 2020 and the appellant-defendant put in appearance through the counsel on 23.11.2020. The right to file the written statement was closed on 13.07.2021 itself. He further referred to the similar matter in Centaur Pharmaceuticals Pvt. Ltd. v. Stanford Laboratories Pvt. Ltd. [SLP No.17298 of 2021 dated 04.01.2021] did not interfere with the order passed by the High Court extending the limitation for filing written statement. In view of the above, the order dated 13.07.2021, closing the right of the appellant-defendant to file the written statement is to be set aside and also the final order dated 01.10.2021 with a direction to the learned Single Judge to decide the suit afresh after considering the written statement. The double bench of Hon’ble Mr. Munishwar Nath Bhandari, Acting Chief Justice & The Hon’ble Mr. Justice P. D. Audikesavalu allowed the petition OSA (CAD) Nos.167 and 168 of 2021 by stating “Since we have set aside the final order dated 01.10.2021 and permitted the appellant-defendant to file the written statement, the matter would now proceed further from the stage of filing of the written statement and accordingly, whatever position was obtaining at the stage of filing of the written statement, the same would operate now.”

OSANos.167 and 1621 IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.01.2022CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE P.D.AUDIKESAVALUOSANos.167 & 1621Straight line CinemasRep by its Propreitor Mr.Sudhir V.KKrishna Bhat towerPullepady RoadErnakulam 682 035... Appellant in both OSAsVs.Dream Warrior PicturesRep. by its Partner Mr.S.R.PrabhuNo.17 8 flat No.1 Ganapathi ApartmentsKrishna Street T.NagarRespondent in both Chennai 600 017... OSAsPrayer in OSANo.1621: Appeal filed under Section 13(1) of the Commercial Courts Act 2015 read with Clause 15 of the amended Letters Patent Act 1865 against the order dated 13.07.2021 in C.S.No.3120.Prayer in OSANo.1621: Appeal filed under Section 13(1) of the Commercial Courts Act 2015 read with Clause 15 of the amended Letters Patent Act 1865 against the order dated 01.10.2021 in C.S.No.3120.___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621For the Appellant in both OSAsFor the Respondent in both OSAs:: Mr.S.Sivaraman Mr.S.S.SwaminathanJUDGMENT(Judgment of the Court was delivered by the Hon ble Acting Chief Justice)By these appeals challenges are made to the order dated 13.07.2021 holding that the appellant defendant has lost its rights to file the written statement and the judgment dated 01.10.2021 decreeing the suit filed by the plaintiff non appellant respectively.2. Learned counsel for the appellant submits that after service of notice in the suit the appellant defendant entered appearance through counsel. However the written statement could not be filed due to the situation obtaining at the relevant time. Ignoring the aforesaid the right of the appellant defendant to file the written statement was closed by the order dated 13.07.2021 and therefore the order has been challenged herein. ___________https: www.mhc.tn.gov.in judis OSANos.167 and 16213. Subsequently a final order was passed on 01.10.2021 without the written statement of the appellant defendant. The said order has been challenged contending that the Apex Court in the similar circumstances by order dated 04.01.2021 dismissed the appeal filed against the order of the High Court extending the period of limitation to submit the written statement.4. The order dated 13.07.2021 whereby the right to file the written statement by the appellant was closed by the learned Single Judge and the final order dated 01.10.2021 passed thereafter have been assailed in separate appeals. Therefore both the appeals are taken up by us for hearing together. 5. A perusal of the order dated 13.07.2021 would disclose closure of rights to file the written statement was mainly on the ground of limitation to file the written statement. 6. Learned counsel for the appellant submits that the plaint ___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621was filed in the year 2020 and the appellant defendant put in appearance through the counsel on 23.11.2020. The right to file the written statement was closed on 13.07.2021 itself. The Apex Court in a similar matter in Centaur Pharmaceuticals Pvt. Ltd. v. Stanford Laboratories Pvt. Ltd.did not interfere with the order passed by the High Court extending the limitation for filing written statement. In view of the above the order dated 13.07.2021 closing the right of the appellant defendant to file the written statement is to be set aside and also the final order dated 01.10.2021 with a direction to the learned Single Judge to decide the suit afresh after considering the written statement. 7. The appeals have been contested by learned counsel for the non appellant plaintiff. It is mainly on the ground that when the period of limitation has been provided for filing the written statement it could not have been extended by the learned Single Judge hearing the plaint and thus the right to file the written statement was rightly closed by the order dated 13.07.2021 and the ___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621final order was also passed on 01.10.2021 after considering the evidence. In view of the above even the final order dated 01.10.2021 may not be interfered with. 8. We have considered the rival submissions of the parties and perused the materials placed on record. 9. We find that the suit has been preferred in the year 2020 and the right to file the written statement was closed by the order dated 13.07.2021 on the ground that the limitation for filing the written statement has expired ignoring the fact that the period for filing can be extended. It is not only that the Apex Court in the case of Centaur Pharmaceuticals Pvt. Ltd. supra has refused to interfere with the order passed by the High Court in extending the period of limitation of filing of the written statement but even in catena of detailed judgments the Apex Court interpreted the provision of Civil Procedure Code holding period of limitation for written statement to be not mandatory in nature but only directory. The Court hearing the plaint can extend the period of limitation on ___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621justified reasons.10. In the instant case the period relevant to the case is between November 2020 and July 2021. It is known that lockdown was imposed in March 2020 and the period subsequent to it was excluded by the Court for all purposes which includes limitation. The aforesaid shows one part to justify the extension of limitation and otherwise we find that the written statement cannot be closed on the ground of limitation alone. Rather in appropriate cases the limitation can be extended. It would however not be that in all cases extension should be granted. Rather if no justification is given the Court can refuse to extend the period of filing the written statement. In the case we find that the period intervening after the filing of suit remain under the Covid 19 pandemic which was not only started from March 2020 but also subsequently due to the second surge of Covid 19. 11. Taking the aforesaid into consideration we find reasons to set aside the order dated 13.07.2021 closing the right of the ___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621appellant defendant to file the written statement and accordingly the appeal challenging the aforesaid order is allowed with a direction to the appellant defendant to file the written statement within a period of two weeks from today. 12. As we have set aside the order dated 13.07.2021 with the direction to file the written statement within the period given above the final order dated 01.10.2021 passed without the written statement is also liable to be set aside. Accordingly the final order dated 01.10.2021 is also set aside. It is made clear that if the written statement is not filed within the period of two weeks from today the right to file the written statement would be closed and the learned Single Judge may proceed further from the aforesaid stage. 13. Since we have set aside the final order dated 01.10.2021 and permitted the appellant defendant to file the written statement the matter would now proceed further from the stage of filing of the written statement and accordingly whatever position was obtaining ___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621at the stage of filing of the written statement the same would operate now. 14. OSANos.167 and 1621 are allowed with the above directions. There will be no order as to costs. Consequently CMP Nos.21717 and 217221 are closed.(M.N.B. ACJ.) 10.01.2022 Index : Yes Nokpl drmTo:The Sub Assistant RegistrarOriginal SideHigh Court Madras___________https: www.mhc.tn.gov.in judis OSANos.167 and 1621M.N.BHANDARI ACJAND P.D.AUDIKESAVALU J.(kpl drm) OSANos.167 & 1621 10.01.2022___________

If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction – Karnataka High Court.

If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction – Karnataka High Court. In case of writ petition is filed under articles 226 and 227 of the constitution of India praying to direct the respondents to grant service weightage for the service rendered as contract principal is in conflict. And in consequence direct the respondents consider the case of the petitioner for selection and appointment such an issue was decided in the judgement of MR DEVARAJU VS STATE OF KARNATAKA (WRP-30379/2018 (S-RES) decided by the single bench of MR. JUSTICE P.B.BAJANTHRI In this case the issue a writ in the nature of mandamus directing the respondents to grant service weightage for the service rendered between 01.08.2008 to 16.03.2011 as contract principal. In consequence direct the respondents to consider the case of the petitioner for selection and appoint him to the post of principal in any of Morarji Desai residential school. The learned counsel for the petitioner stated that, Petitioner has not pointed out any executive order or statutory rule which provides for giving weightage for rendering service on contract basis against a principal post. In the absence of legal or statutory right, petitioner is not entitled for a writ of mandamus to claim weightage for the service rendered on contract basis.  The Hon’ble Supreme Court in the case of STATE OF JAMMU AND KASHMIR VS. R. K. ZALPURI & ORS(AIR 2016 SC 3006), held under what circumstances the writ petition filed under Article 226 can be entertained, if there is a delay and latches which reads as under, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution. The learned counsel for the respondent contended that, in this regard reference to a passage from MANAGING DIRECTOR & ANR VS. K. THANGAPPAN AND ANR would be apposite:- “Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party”. After recording the statements and hearing the averments of both the parties the Hon’ble Court stated that “The High Court does not ordinarily permit a belated resort to the extraordinary 6 remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. Accordingly, petition stands dismissed.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JUNE 2019 THE HON’BLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION NO. 30379 2018MR. DEVARAJU N.P S O. PUTTASWAMY AGED 41 YEARS PRINCIPAL MORARJI DESAI RESIDENTIAL SCHOOL DHARMAPURA HUNSUR TALUK MYSURU DISTRICT 571 189. BY SRI. VICTOR MANOHARAN S ADV.) THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF SOCIAL WELFARE M.S. BUILDING BENGALURU 560 001. THE EXECUTIVE DIRECTOR KARNATAKA RESIDENTIAL EDUCATION INSTITUTION SOCIETY NO.8 MSB 1 6TH AND 7TH FLOOR CUNNINGHAM ROAD BENGALURU 560 052. BY SRI. NAGAIAH ADV. FOR C R2) PETITIONER RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO GRANT SERVICE WEIGHTAGE FOR THE SERVICE RENDERED BETWEEN 01.087.2008 TO 16.03.2011 AS CONTRACT PRINCIPAL. AND IN CONSEQUENCE DIRECT THE RESPONDENTS CONSIDER THE CASE OF THE PETITIONER FOR SELECTION AND APPOINT HIM TO THE POST OF PRINCIPAL IN ANY OF MORARJI DEASI RESIDENTIAL SCHOOL. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: Petitioner has sought for the following reliefs: Issue a writ in the nature of mandamus directing the respondents to grant service weightage for the service rendered between to 16.03.2011 as principal. In consequence direct the respondents to the case of the petitioner selection and appoint him to the post of Principal in any of Morarji Desai Residential Issue such other writ order or direction as this Hon’ble Court deems fit and proper in the fact and circumstances of the case by allowing this writ petition in the interest of 2. Question for consideration in the present writ petition is whether the petitioner is entitled to weightage for service rendered as a contract principal during the period from 01.08.2008 to 16.03.2011 or not Petitioner has not pointed out any executive order or statutory rule which provides for giving weightage for rendering service on contract basis against a principal post. In the absence of legal or statutory right petitioner is not entitled for a writ of mandamus to claim weightage for the service rendered on contract basis. The Hon’ble Supreme Court in the case of STATE OF JAMMU AND KASHMIR VS. R. K. ZALPURI & ORS. reported in AIR 2016 SC 3006 held under what circumstances the writ petition filed under Article 226 can be entertained if there is a delay and latches which reads as under: “20. Having stated thus it is useful to refer to a passage from City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala and Others[6] wherein this Court while dwelling upon under Article 226 of the Constitution has expressed thus: “The Court while jurisdiction under Article 226 is duty bound to consider whether: a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved b) the petition reveals all material facts the petitioner has any alternative or effective remedy for the resolution of the dispute d) person invoking the jurisdiction is guilty of unexplained delay and laches e) ex facie barred by any laws of limitation f) grant of relief is against public policy or barred by any valid law and host of other factors.” 21. In this regard reference to a passage from Karnataka Power Corpn. Ltd Through its Chairman & Managing Director & Anr Vs. K. Thangappan and Anr[7] would be apposite: “Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances causes prejudice opposite party”. After so stating the Court after referring to the in State of M.P. v. Nandalal Jaiswal[8] restated the principle articulated in earlier pronouncements which is to the following effect: “the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices and if writ jurisdiction is exercised after unreasonable delay it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction”. Accordingly petition stands dismissed. Sd

The primary liability to clear off, in favor of the employee, even the employee’s contribution is on the employer subject to adjustment/deduction from salary: Calcutta High Court

Section 2(b) of the Employees’ Provident Fund Act, 1952, cannot circumscribe the specific stipulations in Section 6, which exclusively deals with the respective contributions of the employer and employee regarding the PF, which includes the DA component along with the basic wages, as held by the Hon’ble High Court at Calcutta in the matter of The Calcutta Gujarati Education Society and another vs. The Regional Provident Fund Commissioner and others [C.O. No. 208 of 2006]. The facts of the case relate to an application of Article 227 of the Constitution of India preferred against an order dated 20th October 2005, passed by the Employees’ Provident Fund Appellate Tribunal, whereby, the revisionist-petitioners had approached the Appellate Tribunal against an order dated 30th April 2001, passed by the Regional Provident Fund Commissioner, West Bengal, determining the Provident Fund (PF) dues on the Government’s Dearness Allowance (DA) component for the period from August 1982 to January 1989 under Section 7-A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, wherein it was found by the Commissioner that Provident Fund contribution was payable on the DA by the petitioner. Furthermore, the learned counsel for the petitioners argued that the DA was granted by the State Government and the petitioner was a mere employer who had no role to pay such component of the PF. It has also been argued that the State had been disbursing such amounts with regard to the DA component of the PF through its own Disbursing Officer (DO), however, the Assistant Inspector of School (SE), Calcutta, and DDO of the petitioner, who intimated the District Inspector of Schools (SE), Calcutta seeking necessary instruction for taking further action in respect of the alleged dues based on deductions of the PF contribution for the relevant months, though, according to the Enforcement Officer of PF, West Bengal, who indicated that petitioner was not deducting any PF contributions on DA received from the Government of West Bengal since August 1982. The petitioner also intimated the Regional Provident Fund Commissioner (RPFC) that the DA sanctioned by the Government of West Bengal from time to time were neither received nor managed and disbursed to teachers but the same was placed at the disposal and control of the Disbursement Officer, which was the only person authorized to deal with it and he would directly disburse to the concerned teachers. On behalf of the Regional Provident Fund Commissioner (RPFC), intimation was given asking the petitioner to appear at the designated place to represent its case against the determination of the amount due from such petitioner under the provisions of the EPF Act. The proceeding under Section 7-A of the EPF Act was disposed of, directing the petitioner to deposit the dues of Rs.29,92,848/- within 15 days from the date of receipt of the order, failing which, the dues would be recovered as per rules. Learned counsel appearing for the petitioners relied on several annexures and documents of the contemporaneous period indicating that the DDO had been disbursing the amount directly to the concerned teachers and further argued that the petitioner, who was the employer, never had any control over such disbursal, and hence, the belated claim of arrears for a much prior period was not tenable in the eye of law as far as the DA component of PF was concerned. Thereby, it had been contended that the employer was not liable to pay the employees’ share of the DA component of the PF. Learned counsel also submitted that although Section 6 of the EPF Act stipulates that the contribution of the employer to the fund would be 10% of the basic wages, DA and Retaining Allowances (if any) for the time payable to each of the employees, the same ought to be read with the definition of “basic wages” in the Act itself. Therefore, it was argued that the liability to pay such component, at least in respect of the employees’ share, was on the State Government. On the other hand, learned counsel for the opposite party (RPFC) contended that the provisions of Section 6 of the EPF Act had made it abundantly clear that the employers’ share of the DA component of PF was included within the employers’ contribution. Thereby, the liability was on the employer to pay such dues. The Hon’ble Court relied on Section 2(b)(ii) of the EPF Act and stated that, although basic wages have been defined to exclude DA in the mentioned Section, the employers’ contribution as stipulated in Section 6 included overall, the basic wages, DA and Retaining Allowance. Also, the contributions payable by the employer under the Scheme would be at the rate of 10 percent of the basic wages and the DA payable to each employee to whom the Scheme originally applied, as provided under Section 29 of the EPF Act, and such that it reiterates the concept of Section 6 that the provident Fund shall be calculated not only on the basic wages but on the DA as well. The focus was also laid on Section 30 of the Act which implies that the employer would have to pay both the contributions payable by himself and on behalf of the member employed by him, directly or through a contractor, the contribution payable by such member. It had also been clarified in Section 30(3) of the EPF Act that it would be the responsibility of the principal employer to pay both the contribution payable by him in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor, as well as administrative charges. Emphasis was also laid on Section 31 of the EPF Act which provides the employer would not be entitled to deduct the employer’s contribution from the wage of a member or otherwise to recover it from him. Hence, the Hon’ble Court was satisfied upon consideration of relevant provisions and submissions of the parties, that there was no doubt that the Court had jurisdiction to take up such matter under Article 227 of the Constitution of India. The Hon’ble Court stated that the question of DA component of the PF had been covered under Section 6 of the EPF Act, which indicates that the contribution of PF of the employer shall, over and above 10 percent of the basic wages, which also include the DA component and Retaining Allowance. Adding to that, the definition of “basic wages” in Section 2(b) specifically excludes DA in sub-clause (ii) of such provision, and hence, Section 6 attributes the liability on the employer to pay the employer’s share of the entire amount payable to the employee, including 10 percent of the basic wages as well as the DA. The Hon’ble Court stated that the petitioner failed to discharge its duties in clearing the DA component of PF for the relevant period, i.e., August 1982 to January 1999, and therefore, the RPFC was perfectly justified in directing petitioner no. 1 to pay such amount. It has also been held that, according to the Payment of Wages Act, 1936, the definition of “wages” refers to any remuneration expressed in terms of money or capable of being so expressed which would be payable to a person employed in respect of his employment or of work done in such employment. Subsequently, the Hon’ble Court held that, although the petitioner relied on a memo which stipulated that the Deputy Director of Public Instruction, West Bengal, was authorized to release the requisite funds every quarter in favor of the authorities concerned, such Circular could not be read in exclusion of Section 6 of the EPF Act, which clarified that the liability of payment of the DA component was entirely on the employer, as much as the employer’s share was concerned. Hence, it has been stated that, although DA is not a part of the basic wages, Section 6 read with Section 29 and 30 of the EPF Act indicate that not only it is the employer’s liability to pay his share of the DA component of PF along with other components, the first liability of payment of the contributions of both the employer and employee lies on the employer.

In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.O. No.2006 The Calcutta Gujarati Education Society and another The Regional Provident fund Commissioner and others Mr. Soumya Majumder Ms. Noelle Banerjee Mr. Dipak Dey Mr. Rajib Roy Mr. Sudip Kumr Dutta Mr. Susanta Pal Ms. Ananya Neogi For the petitioners For the opposite parties For the State Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: The present application under Article 227 of the Constitution of India has been preferred against an order dated October 20 2005 passed by the Employees’ Provident Fund Appellate Tribunal in A.T.A No. 383(15) 2001. The revisionist petitioners had approached the Appellate Tribunal against an order bearing Order No. 25 dated April 30 2001 passed by the Regional Provident Fund Commissioner West Bengal determining the Provident Funddues on the Government’s Dearness Allowance DA) component for the period from August 1982 to January 1989 under Section 7 A of the Employees’ Provident Fund and Miscellaneous Provisions Act 1952 Calcutta and DDO of the petitioner no.1 School vide Memo No.666 P dated 7 1997 intimated the District Inspector of Schools Calcutta seeking necessary instruction for taking further action in respect of the alleged dues on the score of deductions of PF contribution for the relevant months in so far as the DA component was concerned. Vide another Memo dated March 11 1997 the Enforcement Officer PF West Bengal had indicated that the petitioner no.1 society was not deducting any PF contributions on DA received from the Government of West Bengal since August 1982. 5. On March 20 1997 the petitioner no.1 society intimated the Regional Provident Fund Commissioner that the DA sanctioned by the Government of West Bengal from time to time were neither received nor managed and or disbursed to teachers by the petitioner no.1 but the same was placed at the disposal and control of the Disbursement Officerappointed by the Government of West Bengal which was the only person authorised to deal with it and he directly without involvement of the society in any manner whatsoever disbursed to the concerned teachers. The petitioner no.1 also communicated to the DDO on March 29 1997 that the PF contributions deducted by the latter be deposited by the DDO directly under an appropriate challan into the EPF Code Account No. WB 19535 to the credit of the respective employees or to hand over such deduction to the petitioner no.1 for enabling the petitioner no.1 to forward it for deposit into the said EPF Code Account. 6. On behalf of the Regional Provident Fund Commissioner intimation was given on March 11 1999 to petitioner no.1 asking the said petitioner to appear be represented on April 7 1999 at 11:00 am at the designated place to represent its case against determination of the amount due from the petitioner no.1 under the provisions of the EPF Act. Such notice was issued in accordance with Section 7 A of the Act. 7. Ultimately vide Order dated April 30 2001 the proceeding under Section 7 A was disposed of directing the petitioner no.1 to deposit the dues of Rs.19 46 878 with interestto the tune of Rs.10 45 970 totalling Rs. 29 92 848 within 15 days from the date of receipt of the order failing which the dues would be recovered as per rules. Learned counsel appearing for the petitioners specifically contends by relying on several annexures and documents of the contemporaneous period to indicate that previously the DDO had been disbursing the amount directly to the concerned teachers. It is further argued that the petitioner no.1 empoloyer never had any control on such disbursal. As such the belated claim of arrears for a much prior period was not tenable in the eye of law inasmuch as the DA component of PF was concerned. In any event it is contended the employer that is the petitioner no.1 is not liable to pay the employees’ share of the DA component of the PF. 11. Learned counsel places reliance on a judgment dated July 24 2019 passed by the Supreme Court in Civil Appeal No.71109in support of the proposition that although the Appellate Tribunal which passed the impugned order was situated in New Delhi the Calcutta High Court had jurisdiction to entertain the present revisional application. In view of the fact that the original order was passed by the Assistant PF Commissioner situated at Calcutta West Bengal this court had territorial jurisdiction to entertain and decide a challenge thereto. 12. Leaned counsel for the petitioner next relies on a Division Bench judgment of this court reported at2 CLJ 61in support of the proposition that the liability of the employer to pay the DA component arises only on receiving the same from the State Government. The premise of the said judgment was that such liability arises only when the amount is released by the Government and paid to the School However in the present case since no such payment had been made to the petitioner no.1 employer no such liability arose on the part of the petitioner no.1. In the said case it was admitted by the employer that it was liable to pay Provident Fundand have been paying such amount including the part of the DA under the employers’ share. In the present case however the employer did not pay such amount at any point of time and the entire control over disbursement and actual disbursement was with the DDO. 16. Learned counsel next cites a Single Bench Judgment reported at 1996) 2 CHN 134 for the proposition that the DA component of PF is paid by the government and only upon such payment the obligation is shifted to the employer. It was further observed in the said report that in the fitness of things belated payment may naturally occur as the pay bills after preparation by the school office are sent to the Government which after due scrutiny are sanctioned. 17. Placing reliance on the definition of “basic wages” in terms of Section 2(b) of the EPF Act it is highlighted that such wages do not include any Dearness Allowance. It is thus contended that it is not the employer’s liability to pay the DA component of the PF as well. Learned counsel submits that although Section 6 of the EPF Act stipulates that the contribution of the employer to the fund shall be 10 per cent of the basic wages DA and Retaining Allowances for the time payable to each of the employees the same has to be read in conjunction with the definition of “basic wages” in the Act itself. As such it is argued that the liability to pay such component at lease in respect of the employees’ share is on the State Government. 19. Learned counsel appearing for the opposite party no.1 contends that the provisions of Section 6 of the EPF Act make it abundantly clear that the employers’ share of the DA component of PF is included within the employers’ contribution. As such the liability is on the employer to pay such dues. 20. Although basic wages have been defined to exclude DA in Section 2(b)(ii) of the EPF Act the employers’ contribution as stipulated in Section 6 clearly includes over and above the basic wages DA and Retaining Allowance. 21. That apart Section 29 of the EPF Act further reiterates that the contributions payable by the employer under the Scheme shall be at the rate of 10 per cent of the basic wages as well as the Dearness Allowance payable to each employee to whom the Scheme applies. The contribution payable by the employee shall be equal to the contribution of the employer and or more. 22. Section 30 of the EPF Act clearly provides that the employer shall at the first instance pay both the contributions payable by himself and also on behalf of the member employed by him directly or by or through a contractor the contribution payable by such member. It has been further clarified in Section 30(3) of the EPF Act that it shall be the responsibility of the principal employer to pay both the contribution payable by himself respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor as well as administrative charges. 24. That apart Section 31 of the EPF Act provides that notwithstanding any contract to the contrary the employer shall not be entitled to deduct the employer’s contribution from the wage of a member or otherwise to recover it from him. It is further submitted that in all the cited judgments Section 6 of the EPF Act have been considered and it has been the clear finding of the Division Bench as well as the learned Single Judge of this Court that the liability of payment of the employer’s contribution of the DA component of PF is of the employer. 26. Upon a consideration of the relevant provisions and the submissions of the parties as well as the cited reports there is no doubt that this Court has jurisdiction to take up the present challenge under Article 227 of the Constitution of India in view of the judgment of the Supreme Court in Calcutta Gujarati Education Societyspecifically excludes Dearness Allowances in sub clause of the said provision. Hence taken harmoniously Section 6 attributes the liability on the employer to pay the employer’s share of the entire amount payable to the employee including 10 per cent of the basic wages as well as the DA. In fact Section 30 of the said Act clearly provides that it is the employer’s liability in the first instance to pay both the contributions payable by himself and also on behalf of the employee. 30. Section 29 in unequivocal terms reiterates the concept of Section 6 that the Provident Fund is to be calculated not only on the basic wages but on the DA as well. 31. Although Section 31 mentions that the employer shall not be entitled to deduct only the employer’s contribution from the wage of a member or otherwise to recover it from him it does not absolve the first instance on the employer to pay both contributions of the employer as well as employee under Section 30 of the EPF Act. In the present case petitioner no.1 failed to discharge its duties in clearing the DA component of PF for the relevant period that is August 1982 to January 1999. Hence the RPFC was perfectly justified in directing the petitioner no.1 to pay such amount. 33. The perusal of Gyan Bharatiand Gyanbharati Vidyapithclearly shows that both the Division Bench and the learned Single Judge laid down the proposition that the statutory liability for payment of PF contribution including the DA component over and above the basic pay is of the employer. 34. Section 6 was clearly interpreted in its literal terms by both the Benches to come to the conclusion that it was the employers’ and not the State’s liability to pay the employer’s contribution of the DA component of the PF. That apart in Section 2(b)(ii) Dearness Allowance has been defined as all cash payments by whatever name called paid to an employee on account of rise in the cost of living. Such DA is obviously paid by the State Government to the employee directly. However insofar as the DA component of the PF is concerned the employer has the liability to pay the employer’s share of such component over and above the basic wages. 35. The provisions of the EPF Act read as a whole leave no option for any other construction. In fact the definition of “wages” in the Payment of Wages Act 1936 also referred in the in the passing by learned counsel means any remuneration expressed in terms of money or capable of being so expressed which would if the terms of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment. In any event such definition has no direct relevance to the present case which only deals with the DA component of the PF which is governed entirely by the EPF Act. 38. Although the petitioner has relied on Memo No.519 Edn. 3 A 3 72 dated August 23 1973 which stipulates that the Deputy Director of Public InstructionWest Bengal is authorised to release necessary funds on quarterly basis in favour of the authorities concerned such Circular cannot be read in exclusion of Section 6 of the EPF Act which clarifies that the liability of payment of the DA component is entirely on the employer at least inasmuch as the employer’s share is concerned. As discussed the primary liability to clear off in favour of the employee even the employee’s contribution is on the employer subject to adjustment deduction from salary. 39. Even in Bridge & Roof Co. Ltd. Vs. Union of India reported at AIR 1963 SC 1474 there is no indication that Provident Fund contributions in respect of the DA is not payable by the employer but by the Government. The definition of Section 2(b) cannot circumscribe the specific stipulations in Section 6 which exclusively deals with the respective contributions of the employer and employee regarding the PF which includes the DA component along with basic wages. In the Regional Provident Fund Commissioner West Bengal Vs. Vivekananda Vidyamandir and others rendered by the Supreme Court on February 28 2019 inter alia in Civil Appeal No.62211 the concept of PF contribution was considered to include the DA component over and above the basic wages. 41. Hence although DA is not a part of the basic wages insofar as the DA component of PF is concerned Section 6 read with Sections 29 and 30 of the EPF Act clearly indicate that not only is it the employer’s liability to pay his share of the DA component of PF along with the other components the first liability of payment of the contributions of both the employer and employee lies on the employer. 42. Thus in the instant case the contentions raised by the petitioners have no legs to stand upon. Hence C.O. No.2006 is disposed of without interfering with the impugned order dated October 20 2005 passed by the Appellate Tribunal. The petitioner no.1 shall pay the liabilities as ascertained by the Appellate Tribunal confirming the order of the RPFC positively within two months from the date of this order. Upon such payment being made the Disbursing Authority shall take appropriate steps to distribute such arrear component of the 12 PF in favour of the respective employees or their heirs and legal representatives in the event the employees are no longer in the world of the living. In default of such payment the RPFC will be at liberty to recover such amount in accordance with law from petitioner no.1. However the petitioners will be at liberty to approach the appropriate authorities of the State Government for recovery of the employees’ share of the DA component for the period between April 1982 and January 1999 and alternatively to deduct the employees’ share of the DA component of PF for the said period in the event the same has not been disbursed in favour of the employees from the total amount directed to be paid by the impugned orders. 44. There will be no order as to costs. 45. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite formalities. Sabyasachi Bhattacharyya J. )

STATE OF MADHYA PRADESH AND ANOTHER V/S THAKUR BHARAT SINGH

An executive action which operates to the prejudice of a person must have the authority of law to back it up BRIEF FACTSAND PROCEDURAL HISTORY: On April 24, 1963, the State Government made an order under Section 3 of the Madhya Pradesh Public Security Act, 1959,directing that the respondentshall not be in any place in Raipur District,shall immediately proceed to and reside in a named town andshall report daily to a police station in that town.The respondent challenged the order by a writ petition under Articles 226 and 227 of the Constitution on the ground inter alia, that Section 3 infringed the fundamental rights guaranteed under Art. 19(1), (d) and (e) of the Constitution.A Single Judge of the High Court declared clauses (ii) and (iii) of the Order invalid on the view that clauses (b) and (c) of Section 3(1) on which they were based contravened Art. 19. A Division Bench, in appeal, confirmed the order of the Single Judge holding that Section 3(1) (b) was violative of Art.19 (1) (d) and that clauses (ii) and (iii) of the, impugned order, being inextricably woven, were both invalid.Against the order of the High Court, the State of Madhya Pradesh has appealed to this Court. ISSUE BEFORE THE COURT: Whether the order made by the state in exercise of the authority conferred by Section 3(1) (b) was invalid;Whether the power conferred by Section 3 (1) (b) authorized the imposition of unreasonable restrictions;Whether Article 358 expressly authorizes the state to take legislative or executive action? RATIO OF THE COURTConstitution Bench of Hon’ble Supreme Court propounded that imposition of restrictions requiring person to reside in such place without providing residence. Maintenance or means of livelihood would be unreasonable.Counsel for the State urged that in any event so long as the State of emergency declared on October 20, 1962, by the President under Art. 352 was not withdrawn or revoked, the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Art. 19(1)(d) of the Constitution was infringed.But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by Section 3(1) (b) authorised the imposition of unreasonable restrictions, the clause must be deemed to be void, for Art. 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred by Part 111, and laws made in contravention of Art. 13(2) are to the extent of the contra- vention void.Section 3(1)(b) was therefore void when enacted and was not revived when the proclamation of emergency was made by the President. Article 358 which suspends the provisions of Art. 19 during an emergency declared by the President under Art. 352 is in terms prospective: after the proclamation of emergency nothing in Art. 19 restricts the power of the State to make laws or to take any executive action which the, State but for the provisions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency.Counsel for the State while conceding that if Section 3(1)(b) was, because it Infringed the fundamental freedom of citizens, void before the proclamation of emergency, and that it was not revived by the proclamation, submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it Infringes the fundamental freedoms under Art. 19. In the judgment, this argument involves a grave fallacy.The court observed that All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution.Counsel for the State relied upon the terms of Art. 162 of the Constitution, and strongly relied upon the observations of Mukherjee, C. J., in RaiSahib Ram JawayaKapur 1955] 2 S.C.R. 225.in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken.The Court was therefore of the view that the order made by the State in exercise of the authority conferred by Section 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under- Art. 358 of the Constitution, since the Order was not supported by any valid legislation. DECISION HELD BY COURT:The Order made by the; State in exercise of the authority conferred by Section 3 (1) (b) was invalid; and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352, no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation.The appeal therefore fails and is dismissed.

STATE OF MADHYA PRADESH & ANR Vs THAKUR BHARAT SINGH DATE OF JUDGMENT SHAH J.C SHAH J.C RAO K. SUBBA454 CITATOR INFO RF 1967 SC1836 (b) Authorising making of an order requiring a person to reside in specified place No Provision for maintenance or subsistence whether imposed unreasonable restriction Therefore Whether violative of Art. 19 Constitution of India Art. 358 Scope of Legislative or executive action infringing rights of citizens or others taken during emergency under Art. 352 Action without lawful authority whether protected by Art 358 On April 24 1963 the State Government made an order under s. 3 of the Madhya Pradesh Public Security Act 1959 directing that the respondentshall not be in any place in Raipur District shall immediately proceed to and reside in a named town andshall report daffy to a police station in that town. The respondent challenged the order by a writ petition under Articles 226 and 227 of the Constitution on the ground inter alia that s. 3 infringed the fundamental rights guaranteed under Art. 19(1) and e) of the Constitution A Single Judge of the High Court declared clausesand iii) of the Order invalid on the view that clausesand c) of s. 3(1) on which they were based contravened Art. 19 A Division Bench in appeal confirmed the order of the Single Judge holding that s. 3(1)(b) was violative of Art 19(1) and that clausesandof the impugned order being inextricably woven were both invalid In appeal to this Court it was contended inter alia on behalf of the appellant Statethat clause 3(1)(b) did not impose an unreasonable restriction that so long as the state of emergency declared on October 20 1962 by the President under Art. 352 was in force the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Art. 19(1)of the Constitution was infringed andthat even if s. 3 was held to be void Art. 358 protects legislative and executive action taken after the proclamation of emergency ’and therefore any executive action taken by an officer of the State could not be challenged as infringing Art. 19 HELD : The Order made by the State in exercise of the authority conferred by s. 3(b) was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution since the order was not supported by any valid legislation.The High Court was right in holding that s. 3(1)(b authorised the imposition of unreasonable restrictions in so far as it required any person to reside or remain in such place or within such area as may be specified in the order The Act does not give any opportunity to the person concerned of being heard before the place where he is to 455 or reside is selected. The place selected may be one in which he may have no residential accommodation and no means of subsistence. S. 3(1)does not indicate the extent of the place or the area its distance from the residence of the person extermed and whether it may be habituated or inhabitated and it makes no provision for his residence maintenance or means of livelihood in the place selected ii) The Act was brought into force before the declaration of emergency and it was therefore open to the respondent to invoke Art. 19. If the power conferred by s. 3(1)(b authorised the imposition of unreasonable restrictions the clause must be deemed to be void when enacted ’and it was not revived when the proclamation of emergency was made by the President.All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the ’State to make or take but for the provisions contained in Part III of the Constitution Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid.2 S.C.R. 225 distinguished CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1066 of Appeal from the judgment and order dated December 4 1963 of the Madhya Pradesh High Court in Letters Patent Appeal No. 263 B. Sen and I N. Shroff for the appellants The respondent did not appear The Judgment of the Court was delivered by Shah J. On April 24 1963 the’ State of Madhya Pradesh made an order in exercise of powers conferred by s. 3 of the Mad Pradesh Public Security Act 1959 hereinafter called ’the actdirecting the respondent Thakur Bharat Singh "that he shall not be in any place in the Raipur district "that he shall reside in the municipal limits of Jhabua town district Jhabua Madhya Pradesh and shall proceed there immediately on the receipt of this order and 456 that he shall notify his movements and report himself personally every day at 8 a.m and 8 p.m. to the Police Station Officer Jhabua The respondent moved a petition in the High Court of Madhya Pradesh under Arts. 226 & 227 of the Constitution challenging the order on the grounds inter alia that ss. 3 6 and other provisions of the Act which authorised imposition of restrictions on movements and actions of person were ultra vires in that they infringed the fundamental freedoms guaranteed under Art. 19(1)& of the order valid and declared cls.andinvalid. In the view of the learned Judge the provisions of s. 3(1)(a) of the Act were valid and therefore the directions contained in cl. of the order could lawfully be made by the State but. cls. &of s. 3(1) of the Act were invalid because they contravened the fundamental freedom of movement guaranteed under Art. 19 of the Constitution and therefore the directions contained in cls.&of the order were invalid. Against the order passed by Shivdayal J. two appeals were filed under the Letters Patent of the High Court. A Division Bench of the High Court held that cls a) & of s. 3(1) of the Act were valid but in their view cl.of s. 3(1) wits not valid because it violated the fundamental guarantee under Art. 19(1) of the Constitution. The High Court however confirmed the order of Shivdayal J. since in their view the direction contained in cl.of the order was "inextricably woven" with the directions in cl.and was on that account invalid Against the order of the High Court the State of Madhya Pradesh has appealed to this Court The relevant provisions of the Act may be briefly set out Section 3 of the Act provides "If the State Government or a District Magistrate is satisfied with respect to any person that he is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order and that in order to prevent him from so acting it is necessary in the interests of the general public to make an order under this section’ the State Government or the District Magistrate as the case may be may make an order directing that except in so far as he may be permitted by the provisions of the order or by such authority or persons as may be specified therein he shall not be in any such area or place in Madhya Pradesh as may be specified in the order 457 requiring him to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may be specified in the order requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner at such times and to such authority or person as may be specified in the order imposing upon him such restrictions as may be specified in the order in respect of his association or communication with such persons as may be mentioned in the order prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order If any person is found in any area or place in contravention of a restriction order or fails to leave any area or place in accordance with the requirements of such an order then without prejudice to the provisions of sub section he may be removed from such area or place by any police officer If any person contravenes the provisions of any restriction order he shall be punishable with imprisonment for a term which may extend to One year or with fine which may extend to one thousand rupees or with both Section 4 authorises the State to revoke or modify "the restriction order" and S. 5 authorises the State to suspend operation of the "restriction order" unconditionally or upon such conditions as it deems fit and as are accepted by the person against whom the order is made. Section 6 requires the State to disclose the grounds of the "restriction order". Section 8 provides that in every case where a restriction order" has been made the State Government shall with in thirty days from the date of the order place before the Advisory Council a copy thereof together with the grounds on which it has been made and such other particulars as have a bearing on the matter and the representation if any made by the person affected by such order. Section 9 provides for the procedure of the Advisory Council and s 16 requires the State to confirm modify or cancel the restriction order" in accordance with the opinion of the By cl. of the order the respondent was required to reside within the municipal limits of Jhabua town after proceeding to that place on receipt of the order. Under cl b) of s. 3(1) the State is authorised to order a person to reside in the place where he is ordinarily residing and also to require him to go to any other area or place within the State and stay in that area or place. If the person so ordered fails to carry ’out the direction he may be removed to the area or place designated and may also be punished with imprisonment for a term which may extend to one year or with fine or with both. The Act it may be noticed does not give any opportunity to the person concerned of being heard before the place where he is to reside or remain in is selected. The place selected may be one in which the person concerned may have no residential accommodation and. no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Sub section 3(1)(b) of the Act does not indicate the ’extent of the place or the area its distance from the residence of the person externed and whether it may be habitated or inhabitated: the clause also no where pro vides that the person directed to be removed shall be provided with residence maintenance or means of livelihood in the place selected. In the circumstances we agree with the High Court that cl.authorised the imposition of unreasonable restrictions insofar as it required any person to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order Counsel for the State did not challenge the view that the restrictions which may be imposed under cl.of s. 3(1 requiring a person to leave his hearth home and place of business and live and remain in another place wholly unfamiliar to him may operate seriously to his prejudice and may on that account be unreasonable. But he contended that normally in exercise of the power under cl. a person would be ordered to remain in the town or village where he resides and there is nothing unreasonable in the order of the State restricting the movements of a person to the town or place where he is ordinarily residing. It is true that under cl.an order requiring a person to reside or remain in a place where he is ordinarily residing may be passed. But in exercise of the power it also open to the State to direct a person to leave the place of his ordinary residence and to go to another place selected by the authorities and to reside and remain in that place Since the clause is not severable it must be struck down in its entirety as unreasonable. If it is intended to restrict the movements of a person and to maintain supervision over him orders may appropriately be made under cls.andof the Act Counsel for the State urged that in any event so long as the State of emergency declared on October 20 1962 by the 459 under Art. 352 was not withdrawn or revoked the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Art. 19(1)(d) of the Constitution was infringed. But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by s. 3(1)(b) authorised the imposition of unreasonable restrictions the clause must be deemed to be void for Art. 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred by Part 111 and laws made in contravention of Art. 13(2) are to the extent of the contra vention void. Section 3(1)(b) was therefore void when enacted and was not revived when the proclamation of emergency was made by the President. Article 358 which suspends the provisions of Art. 19 during an emergency declared by the President under Art. 352 is in terms prospective: after the proclamation of emergency nothing in Art. 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency. Counsel for the State while conceding that if s 3(1)(b) was because it Infringed the fundamental freedom of citizens void before the proclamation of emergency and that it was not revived by the proclamation submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it Infringes the fundamental freedoms under Art. 19. In our judgment this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid.) Our federal .’ structure is founded on certain fundamental principles :the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people The people govern themselves through their representatives whereas the official agencies’ of the executive Government possess only such powers as have been confer red upon them by the people There is distribution of powers between the three organs of the State legislative executive and judicial each organ having some check direct or indirect on the other andthe rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his "Introduction to the study of the Law of the Constitution" 10th Edn. at p. 202 the expression "rule of law " has three meanings or may be regarded from three different points of view. "It means in the first place the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even of wide discretionary authority on the part of the government." At p. 188 Dicey points out "In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest of temporary imprisonment of expulsion from its territory and the like than is either legally claimed or in fact exerted by the government in England : and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must if it is to operate to the prejudice of any person be supported by some legislative authority Counsel for the State relied upon the terms of Art. 162 of the Constitution and the decision of this Court in Rai Sahib Ram Jawaya Kapur v. The State of Punjab(l) in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. Article 162 provides that subject to the provisions of the Constitution the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other and not with the validity of its exercise. Counsel for the State however strongly relied upon the observations of Mukherjea C. J. in Rai Sahib Ram Jawaya Kapur’s case(l 1) 2 S.C.R. 225 461 They do not mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union or the State executive as the case may be can proceed to function in respect to them. On the other hand the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was it is true not supported by legislation but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized schools were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only "authors and others" to submit text books for approval by the Government. Under agreements with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners a firm carrying on the business of preparing printing publishing and selling text booksthen moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guarantee under the Constitution It was held by this Court that the action of the Government did not amount to infraction of the guarantee under Art 19(1)(g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students It is true that the dispute arose before the Constitution seventh Amendment) Act 1956 amending inter alia Art 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing publishing and selling text books. It was contended in support of the petition in Rai Sahib Ram Jawaya’s case(1) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to a be 1) 2 S.C.R. 225 right to property or to any interest or undertaking. It is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is. issued We are therefore of the view that the order made by the State in exercise of the authority conferred by s. 3(1)(b of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution since the Order was not supported by any valid legislation The appeal therefore fails and is dismissed R.K.P.S. Appeal dismissed

Potential of land acquisition and cumulative increase should be considered before determining the market value of a land: Supreme Court

As per the settled preposition of law while determining the market value/compensation, previous instances of acquisition in proximity for location and potential of land acquisition along with cumulative increase is relevant consideration as held by the Hon’ble Supreme Court through the learned bench led by Justice M. R. Shah in the case of Anil Kumar Soti & Ors. v. State of U.P. through Collector Bijnore (U.P.) (CIVIL APPEAL NO.6919 OF 2021). The brief facts of the case are that the appellants’ lands situated at village Rawali came to be acquired for public purpose. A notification under Section 4 of the Land Acquisition Act, 1894 was issued on 16.05.1981. The Land Acquisition Officer declared the award and determined the compensation at Rs.5,218.39/­ per acre. At the instances of the claimants a Reference was made to the District Court under Section 18 of the ACT claiming compensation of Rs.12,000/­ per acre. The Reference Court enhanced the compensation from Rs.5,218.39/­ per acre to Rs.6,696.70/­ per acre with all other statutory benefits which may be available under the Act. The appellants herein preferred the appeal before the High Court. The claimants prayed the compensation of Rs.15,402/­ per acre relying upon the judgment and award passed by the Reference Court in another case with respect to the acquisition of the land of the very village, but with respect to the notification issued under Section 4 of the Act dated 19.12.1981. That by the impugned judgment and order and relying upon and considering the sale deed exemplar dated 23.12.1980, the High Court has partly allowed the said appeal and has determined and awarded the compensation at the rate of Rs.7,100/­ per acre. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, enhancing the amount of compensation to Rs.7,100/­ per acre only the original claimants have preferred the present appeal. After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held, “In the present case, time gap between two notifications under Section 4 of the Act is only seven months. Nothing has been pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 ­ time gap between the two notifications under Section 4 of the Act. The Reference Court in that case relied upon the sale deed exemplar of 1978. The judgment and award passed by the Reference Court in that case determining the market value/compensation at Rs.15,402/­ per acre has attained the finality and the State has accepted the same by withdrawing the appeal against the said judgment and award. Therefore, in the present circumstances, the appellants shall be entitled to the compensation at Rs.15,402/­ per acre. In view of the above and for the reasons stated above, the present appeal succeeds. The present appeal is allowed accordingly.”

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.04.2019 passed by the High Digitally signed byNEETU KHAJURIADate: 2021.11.2317:17:35 ISTReason:Signature Not Verified at Rs.7 100 ­ per acre only original land owners have the Act) was issued on 16.05.1981. The Land Acquisition Reference Court enhanced the compensation from Rs.5 218.39 ­ per acre to Rs.6 696.70 ­ per acre with all other statutory benefits which may be available under the Act. The appellants herein preferred the appeal before the High Court. The claimants prayed the compensation of to the acquisition of the land of the very village but with and relying upon and considering the sale deed exemplar dated 23.12.1980 the High Court has partly allowed the said 3. Feeling aggrieved and dissatisfied with the impugned amount of compensation to Rs.7 100 ­ per acre only the 4. Learned Counsel appearing on behalf of the appellants original claimants has vehemently submitted that the High the compensation at Rs.15 402 ­ per acre. It is submitted that the Reference Court in that case relied upon the sale deed exemplar of the year 1978 and thereafter determined the market value of the compensation at Rs. 15 402 ­ per acre. It is submitted that the appeal against the judgment and award passed by the Reference Court in that case that therefore the Government has accepted the judgment land acquired of the same village but for which the notification under Section 4 of the Act was issued on 5. Learned counsel appearing on behalf of the respondent acre considering the sale deed exemplar dated 23.12.1980 the interference of this court in exercise of power under 6. We have heard the learned counsel appearing for the 7. At the outset it is required to be noted and it is not in Court has determined the compensation at Rs.7 100 ­ per the land acquired of the very same village for which the notification under Section 4 of the Act was issued on and awarded the compensation at Rs.15 402 ­ per acre Reference Court in another case determining the upon by the claimants in the present case) the Reference Court had considered the sale deed exemplar of the year settled preposition of law while determining the market value compensation previous instances of acquisition in with cumulative increase is relevant consideration. In the present case time gap between two notifications under pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 ­ time gap the contrary after the judgment and award passed by the Reference Court with respect to the land acquired of the same village for which notification under Section 4 was issued on 19.12.1981 the Reference Court determined the case determining the market value compensation at said judgment and award. Therefore in the present circumstances the appellants shall be entitled to the In view of the above and for the reasons stated above the acquired at Rs.15 402 ­ per acre with all other statutory benefits which may be available under the Act subject to

Recovery of Weapon used in the commission of offence is not an essential condition to convict the accused: Supreme Court

When there a minor contradiction which do not go to the root of the matter and/or such contradictions are not material contradictions the evidence of such witnesses cannot be brushed aside and/or disbelieved. A division bench comprising of Justices DY Chandrachud and MR Shah adjudicating the matter of Rakesh and Another v. State of U.P and Another( CRIMINAL APPEAL NO. 556 OF 2021) dealt with an issue whether to allow or dismiss the appeal of the Accused. In the present case, the appellants have filed an appeal before the Supreme Court of India being dissatisfied by the order passed by the High Court of Allahabad which dismissed their appeal arising out of the judgment passed by the Dist. & Sessions court Hathras. The Appellants were convicted u/s-302 along with S-34 of IPC. The Appellants along with one accused -Suresh were tried in the murder case of Bhishampal Singh on 28.01. 2006. The Appellant-1 Rakesh used a countrymade pistol and caused injuries to the deceased and Appellant No 2&3 assaulted the deceased with knives. It was held by the Trial Court that the accused were guilty of Sec-302 of IPC and were sentenced for life imprisonment. Also, they were charged with Section 4/25 of the Arms Act for which a separate sentence was also imposed. The court heavily relied upon the evidence deposed by the eyewitnesses and also the medical evidences deposed by the Doctor who conducted the Post -mortem. The Appellants submitted that the Trial Court and High court have committed a grave error in convicting the accused on the basis of deposition of the eyewitnesses. The presence of the Prosecution witness is doubtful. Also, it was submitted by him that he came subsequent to the occurrence of the incident. He was confronted about the fact that he had come to the spot only after receiving the information about the incident. It was further submitted that there was an enmity and prior disputes between the accused and the deceased and even PW 1. Also, It is submitted that the deceased was facing criminal trial under Section 307 of the IPC on the allegation of a murder attempt on A1 – Rakesh. It is submitted therefore there is a possibility of falsely implicating the A1 – Rakesh. Also In regards to Suresh and Anish It is submitted therefore that when they inflicted injuries on the dead body, i.e., after the deceased died by gun shot, they cannot be convicted for the offence punishable under Section 302 as by the time the accused A2 & A3 have alleged to have caused injuries, the deceased had died. It is submitted that even PW1 in his cross-examination has admitted that the moment deceased received a gunshot injury he fell down and died. Also, it was submitted that incised injuries cannot be caused by stabbing by a knife. It is further submitted that it has also come in evidence that as per the ballistic report bullet did not match with the alleged pistol used by the accused – Rakesh. The Respondents submitted that no error has been committed by the learned trial Court convicting the accused. Both the witnesses are reliable and trustworthy. It is submitted that on each and every aspect on which the learned counsel appearing on behalf of the accused – defence has made submissions, PW1 and PW2 were cross-examined. It is submitted that thereafter on appreciation of entire evidence on record, the learned trial Court has convicted the accused and the same has been rightly confirmed by the High Court. The motive has also been established and proved. The court held that since both the witnesses are thoroughly cross-examined on each and every aspect pointed out, they fully support the prosecution case. Also according to the submission of the accused the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of a gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing, and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in the commission of offence is not a sine qua non. where the eyewitness to the incident specifically states that Rakesh fired from the gun and the deceased sustained injury such plea of the accused cannot be entertained. In reference to submission of defence that the injuries were inflicted after the death of the deceased it is to be noted that the Appellant 1& 2 1are convicted for aiding the accused. There is no evidence at all on record to suggest that when the deceased sustained injuries by knives by A2 & A3 , he was dead . reliance has been placed on the deposition of PW1 by the defence that he admitted that after the gunshot injury, the deceased fell down and died. However, he does not say that when A2 & A3 caused injuries by knives at that time the deceased was dead. Therefore, the defence has failed to establish and prove that at the time when the deceased sustained injuries by the knives used by A2 & A3, he was dead.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 556 OF 2021 Rakesh and another State of U.P. and another JUDGMENT M.R. SHAH J 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.09.2018 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 28108 by which the High Court has dismissed the said appeal preferred by the appellants original accused challenging their conviction for the offence punishable under Section 302 r w 34 of the IPC passed by the learned Additional District & Sessions Judge Fast Track Court No.2 Hathras the original accused nos. 1 & 3 have preferred the present appeal 2. That both the appellants herein along with one another accused Suresh were tried by the learned trial Court for the offences punishable under Section 302 r w 34 of the IPC for having killed one Bhishampal Singh in an incident which happened on 28.01.2006. The role attributed to A1 Rakesh was that he used countrymade pistol and caused injuries on the deceased. It was alleged that so far as Suresh and Anish A2 & A3 are concerned they assaulted the deceased with their respective knives. That after the full fledged trial the learned trial Court held all the accused guilty for the offence punishable under Section 302 r w 34 of the IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for the offences punishable under Sections 4 25 of the Arms Act for which a separate sentence was also imposed by the learned trial Court. While convicting the accused the learned trial Court heavily relied upon the depositions of PW1 and PW2 eye witnesses and also the medical evidence and the deposition of Dr. Santosh Kumar PW5 who conducted the post mortem on the body of the deceased 3. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court convicting the accused for the offence punishable under Section 302 r w 34 of the IPC and imposing the sentence of life imprisonment and also for the offences under the Arms Act all the accused preferred appeal before the High Court being Criminal Appeal No. 28108. By the impugned judgment and order the High Court has dismissed the said appeal and has confirmed the conviction of the accused for the offences under Section 302 r w 34 of the IPC and the sentence imposed of life imprisonment 4. Feeling aggrieved and dissatisfied with the impugned judgment and order of the High Court original accused no.1 Rakesh and accused no.3 Anish have preferred the present appeal. It appears that original accused no.2 Suresh has not preferred any appeal 5. Shri Rishi Malhotra learned Amicus Curiae has appeared on behalf of the appellants and Shri Vinod Diwakar learned Additional Advocate General has appeared on behalf of the State of Uttar Pradesh and Shri Arjun Dewan learned Advocate has appeared on behalf of the original complainant Shri Rishi Malhotra learned Amicus has vehemently submitted that both the learned trial Court as well as the High Court have committed a grave error in convicting the accused relying upon the depositions of PW1 and PW2 It is vehemently submitted that so far as PW2 is concerned his presence on the spot at the time of the incident is absolutely doubtful. It is submitted that even according to him he came subsequent to the occurrence of the incident. It is submitted that as such he has specifically admitted in the cross examination that when they had reached the court at 10:30 a.m. the next date of hearing was given as the Presiding Officer was not there. It is submitted that he was also confronted about the fact that he had come to the spot only after receiving the information about the incident. It is submitted that PW2 has specifically admitted that he reached the court before the deceased and PW1 at 10:00 a.m. and had moved an application for exemption from appearance of the accused in that case. According to the learned counsel appearing on behalf of the appellants he also admitted that on 29.01.2006 he alone came to the court and did not have a word with the deceased on the morning of 28.01.2006. It is submitted therefore no reliance could have been placed upon the deposition of PW2 It is further submitted by the learned Amicus that as such and it is an admitted position that there was an enmity and prior disputes between the accused and the deceased and even PW1. It is submitted that the deceased was facing criminal trial under Section 307 of the IPC on the allegation of murder attempt on A1 Rakesh. It is submitted therefore there are all possibility of falsely implicating the A1 Rakesh It is further submitted that so far as the other accused A2 A3 namely Suresh and Anish are concerned from the ocular evidence as well as medical evidence it is clear that they caused injuries on the deceased after the deceased died i.e. on the dead body. It is submitted therefore that when they inflicted injuries on the dead body i.e. after the deceased died by gun shot they cannot be convicted for the offence punishable under Section 302 as by the time the accused A2 & A3 have alleged to have caused injuries the deceased had died. It is submitted that even PW1 in his cross examination has admitted that the moment deceased received gun shot injury he fell down and died It is further submitted that even according to PW1 and even PW2 the matter was already adjourned and even the ‘Sick Note’ was given on behalf of the deceased. It is submitted therefore when the ‘Sick Note’ was given and the matter was already adjourned there was no reason for the deceased and PW1 to come to court. It is submitted that it is very much doubtful that the deceased and PW1 reached the court and or went to the court room It is further submitted by the learned Amicus appearing on behalf of the appellants that even there are material contradictions insofar as use of weapon by A2 & A3 are concerned. It is submitted that what was recovered was ‘knife’ and PW2 has categorically stated that the deceased was assaulted by ‘dagger’ and not by ‘knife’ It is submitted that there is a difference between ‘dagger’ and ‘knife’. It is submitted that even Dr. Santosh Kumar PW5 has specifically admitted that injuries nos. 2 to 8cannot be caused stabbing by knife. It is submitted that the doctor has specifically admitted in the cross examination that incised injuries nos 2 to 8 are not mentioned clean cut and it was difficult to state that the alleged weapon was not sharp on both the sides It is further submitted that it has also come in evidence that as per the ballistic report bullet did not match with the alleged pistol used by the accused Rakesh It is submitted that the appellants are in custody since January 2006 and have already undergone more than 15 years of Making the above submissions it is prayed to allow the present appeal and quash and set aside the conviction and sentence imposed by the learned trial Court confirmed by the High Court Shri Vinod Diwakar learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh has vehemently submitted that in the facts and circumstances of the case no error has been committed by the learned trial Court convicting the accused relying upon the depositions of PW1 & PW2 It is submitted that both PW1 & PW2 are trustworthy and reliable witnesses. It is submitted that their presence at the time of incident has been established and proved by the prosecution by examining PW1 & PW2. It is submitted that both PW1 & PW2 have been fully and thoroughly cross examined and considering the entire evidence deposition of PW1 & PW2 their presence at the time of incident has been established and proved. It is submitted that on each and every aspect on which the learned counsel appearing on behalf of the accused defence has made submissions PW1 and PW2 were cross examined. It is submitted that thereafter on appreciation of entire evidence on record the learned trial Court has convicted the accused and the same has been rightly confirmed by the High Court It is submitted that in the present case the motive has been established and proved. It is submitted that the defence has failed to establish and prove that they were falsely implicated in the case It is further submitted by the learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh that as such nothing is on record and or there is no evidence on record to even suggest that A2 & A3 caused injuries on the deceased by the time he died. It is submitted that the aforesaid defence is not borne out at all either from the deposition of PW1 PW2 or even PW5 It is submitted that as such the prosecution has fully established and proved that on 28.01.2006 the deceased PW1 PW2 attended the court. It is submitted that however the court was not available on that date as the learned Presiding Officer was on inspection and therefore before they reached the matter was adjourned. It is submitted that ‘Sick Note’ on behalf of the deceased has already been explained by PW1 in his deposition It is further submitted that in the present case even recovery of weapon weapons used by the accused has been established and It is further submitted that even the accused did not lead any evidence to prove that they were not present on the spot at the time of incident and that they were present elsewhere Shri Arjun Dewan learned Advocate appearing on behalf of the original complainant has adopted the submissions made by the learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh. In addition it is vehemently submitted by the learned counsel appearing on behalf of the complainant that the evidence of PW1 & PW2 is credible. It is submitted that their presence at the time of incident has been established and proved. It is submitted that PW2 has consistently stated that he saw the accused herein on a motorcycle going towards the deceased victim and he witnessed the accused no.1 Rakesh shooting the deceased victim and accused no.2 Suresh assaulting the deceased with a knife. It is submitted that there might be some minor contradictions but as held by this Court in the case of Yogesh Singh v. Mahabeer Singh 8 SCC 127 that minor discrepancies should not be given undue importance that don’t go to the root of the matter Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found did not match with the gun recovered it is submitted that as held by this Court in the case of Himanshu Mohan Rai v. State of U.P. 4 SCC 161 in a case where the ballistic report is contrary to the evidence of the witnesses but the statements of the witnesses have inspired the confidence of the Court and have been held to be credible and reliable then such a contradiction between the ballistic report and the credible evidence of a witness cannot be the basis of rejecting the evidence of a witness. It is submitted that at the most the recovery of the weapon gun may not be believed but when PW1 & PW2 have specifically stated that it was the A1 who fired and caused injury on the deceased which is fully supported by the medical evidence injury no.1 and in fact there was a gun shot injury on the deceased and therefore on the aforesaid aspect PW1 & PW2 are fully supported by the medical evidence the aforesaid cannot be a ground to acquit the accused It is submitted that there is a recovery of knife at the instance of A1 which was used by A2 for commission of the offence. It is submitted that as such no question with respect to knife recovered can cause injury nos. 2 to 8 was put to Dr. Santosh Kumar PW5 It is further submitted that even in the recovery memo which was immediately taken during the course of investigation had the signatures of PW1. It is submitted therefore the presence of PW1 has already been established and proved It is further submitted that as such there are concurrent findings of fact recorded by the learned trial Court as well as the High Court which are on appreciation of evidence on record. It is submitted that therefore no case is made out to interfere with the impugned judgment and order of conviction and sentence imposed by the learned trial Court confirmed by the High Court We have heard the learned counsel for the respective parties at length. We have carefully gone through the judgment and order of conviction and sentenced passed by the learned trial Court as well as the impugned judgment and order passed by the High Court. We have also re appreciated the entire evidence on record more particularly the depositions of PW1 PW2 and PW5. We have also considered the injuries found on the dead body of the deceased From the judgment and order passed by the learned trial Court it appears that while convicting the accused the court has heavily relied upon the depositions of PW1 PW2 and PW5. PW1 and PW2 are stated to be the eye witnesses to the incident. Having gone through the entire depositions of PW1 & PW2 and even the cross examination of the aforesaid two witnesses we are of the firm opinion that both PW1 & PW2 are trustworthy and reliable witnesses. Their presence at the time of incident with the deceased has been established and proved by the prosecution. The presence of PW1 and even PW2 at the time of incident is natural. PW1 is the son of the deceased who accompanied the deceased to attend the court Similarly PW2 also was required to attend the court and therefore he reached the court and thereafter he saw the incident. Both the witnesses have been fully and thoroughly cross examined. There may be some minor contradictions however as held by this Court in catena of decisions minor contradictions which do not go to the root of the matter and or such contradictions are not material contradictions the evidence of such witnesses cannot be brushed aside and or disbelieved In the present case both the aforesaid witnesses are thoroughly cross examined on each and every aspect pointed out by the defence. However they have fully supported the case of the prosecution. PW1 has also explained the giving of the ‘Sick Note’ on behalf of the deceased when such a question was asked in the cross examination. PW1 has categorically stated that when they reached the matter was already adjourned as the learned Presiding Officer was on inspection and was not available in the court. By the time they reached the matter was already adjourned. As at the time when the matter was adjourned the deceased and PW1 could not reach the court the learned advocate gave the sick note and prayed for exemption. The matter came to be adjourned and thereafter PW1 and the deceased reached the court. From the entire evidence on record it is established and proved that the deceased and PW1 went to the court thereafter the matter was adjourned and thereafter while returning just 15 to 20 minutes away from the court the incident had taken place. The place of incident has been established and proved by the prosecution Now so far as the submission on behalf of the defence that PW2 stated that he reached the spot subsequently after he received the message is concerned what is required to appreciate and consider the evidence as a whole. When a specific question was asked to him that in the statement before the police he stated that he reached subsequently PW2 has specifically denied the same and he has categorically stated that no such statement was given by him to the police and he does not know how such a statement was recorded in his statement. No question has been asked by the defence to the person IO who recorded the statement of PW2. Considering the entire deposition as a whole we are of the opinion that the prosecution has been successful in proving the presence of PW1 PW2 at the time and place of incident. They are found to be trustworthy and reliable Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the fire arm gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned the aforesaid cannot be accepted. At the most it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW1 PW2 as observed hereinabove are reliable and trustworthy eye witnesses to the incident and they have specifically stated that A1 Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr. Santosh Kumar PW5. Injury no.1 is by gun shot. Therefore it is not possible to reject the credible ocular evidence of PW1 & PW2 eye witnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW1 & PW2 that A1 shot deceased with a gun particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW2 & PW5. Therefore merely because the ballistic report shows that the bullet recovered does not match with the gun recovered it is not possible to reject the credible and reliable deposition of PW1 Now so far as the submission on behalf of the defence that at the most it can be said that A2 & A3 caused injuries on the dead body as according to them they caused injuries after the gun shot fired on the deceased and the deceased fell down and died. Therefore it is the case on behalf of A2 & A3 that having been caused the injuries on the dead body they could not have been convicted for the offence punishable under Section 302 IPC. However it is required to be noted that A2 & A3 are convicted with the aid of Section 34 of the IPC. Apart from that there is no evidence at all on record to suggest that when the deceased sustained injuries by knives by A2 & A3 and the deceased sustained injuries nos. 2 to 8 by the time he was dead Much reliance has been placed on the deposition of PW1 by the defence that he admitted that after the gun shot injury the deceased fell down and died. However he does not say that when A2 & A3 caused injuries by knives at that time the deceased was dead Therefore the defence has failed to establish and prove that at the time when the deceased sustained injuries nos. 2 to 8 by the knives used by A2 & A3 he was dead It is also the case on behalf of the defence that according to the witnesses eye witnesses the weapon used was ‘dagger’ and not ‘knife’ and what is recovered is ‘knife’ and PW2 has subsequently improved his deposition that the other accused caused injuries by knives. It is the case on behalf of the defence that even the doctor in his cross examination has stated that it is very doubtful to say that the injuries were by sharp cutting weapon on both sides. However it is to be noted that the doctor answered the question which was put to him One is required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defence in the cross examination cannot be considered stand alone. Even otherwise it is to be noted that what is stated by the Doctor Medical officer can at the most be said to be his opinion. He is not the eye witness to the incident. PW1 & PW2 have categorically stated that the other accused inflicted the blows by knives. The same is supported by the medical evidence and the deposition of PW2. Injuries nos. 2 to 8 are sufficient by the sharp cutting weapon. Injuries nos. 2 to 8 are on different parts of the body which show the intention and conduct on the part of the other accused A2 & A3. Therefore they are rightly convicted for the offence punishable under Section 302 IPC with the aid of Section 34 IPC Their presence and participation have been established and proved by the prosecution by examining PW1 & PW2 who are found to be reliable and trustworthy witnesses In the present case the prosecution has been successful in proving the motive. There was a prior long time enmity between the deceased and the accused A1. Even the deceased was also facing trial for the offence under Section 307 IPC at the instance of A1. The defence has failed to prove any circumstances by which it can be said that they are falsely implicated in the case In view of the above and for the reasons stated above no interference of this Court is called for. The learned trial Court and the High Court have rightly convicted the accused for the offence punishable under Section 302 r w 34 of the IPC So far as A1 is concerned there is a direct evidence against him using the gun and shooting the deceased. Therefore even he can be convicted for the offence punishable under Section 302 IPC without the aid of Section 34 IPC. As observed hereinabove both the courts below have rightly convicted A1 for the offence punishable under Section 302 IPC and other accused A2 & A3 for the offence punishable under Section 302 IPC with the aid of Section 34 IPC Under the circumstances the appeal fails and deserves to be dismissed and is accordingly dismissed Dr. Dhananjaya Y. Chandrachud New Delhi July 06 2021

Life sentence reaffirmed for rape accused: Bombay High Court

The Bombay high court rejected the plea of a 27-year-old who was accused of raping a 3-year-old girl. This judgement was passed by the division bench of Justice S Shinde and Justice MS Karnik in the matter of Sudam Ramnath Shelke versus The State of Maharashtra [Criminal Appeal No. – 803 of 2016]. The appellant challenged the judgement of the Additional Session Judge, Nashik for the offence punishable under section 376 (2) (f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 30,000/-. Life sentence reaffirmed for rape accused and after gone through the order of the Trial Court, High Court was in respectful agreement with the well-considered order passed by the Trial Court. Facts related to this case is: The victim was raped by the accused while she lived with her late grandmother when she was about three years and eight months old. The victim was found crying and with several injuries, while the incident took place and later confirming to her mother that it was mobile wala babu (accused) who took her in the field and committed the offence. The Court observed that “Learned Counsel for the accused made an attempt to contend that no reliance should be placed on DNA analysis as CA Kalina had received stain cuttings and not the entire clothes and therefore there is the possibility of tampering. DNA report however shows that stain cuttings of frock, stain cuttings of full pant, stain cuttings of underwear, stain cuttings of full pant were received. The numbers mentioned in DNA profile were also matching.” Also “The Court witness – Dr Shrikant Hemant Lade has produced on record the letter received from CA Nashik wherein it is specifically mentioned that stain cuttings were forwarded for DNA analysis. DNA report shows that bloodstains found on the underwear of the accused are of the victim girl. The complainant’s version is thus corroborated by the medical and other evidence.” The Court stated that the tender age of the victim does not allow her to narrate the incident which took place but the circumstances and evidence are enough to prove the faults of the accused. The Court proceeded to state that “the entire evidence which is in the nature of direct evidence is corroborated by medical evidence. Though the accused has submitted that he is implicated falsely, there is nothing on record to show that there was enmity between the family of the accused and the family of the victim girl. During cross-examination, no reason came forward to show that there was the reason for the grandmother of the victim girl or her family members to implicate the accused falsely.” The Court dismissed the petition by saying that “So far as the question of punishment is concerned, we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age, a resident of the same village who betrayed the trust of the victim & became a violator deserves no leniency. We, therefore, do not find any infirmity in the order passed by the trial Court, consequently, Appeal is dismissed.” Click here to read the judgement

Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 Bombay High Court Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 Bench: S.S. Shinde Makarand Subhash Karnik criminal 803.16.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 803 OF 2016 Sudam Ramnath Shelke Age: 27 years R at : Nandur Shingote Tal : Sinnar Dist : Nashik present at Nashik Central Jail .. Appellant Vs The State of Maharashtra .. Respondent Mr.Aniket Vagal for Appellant Dr.F.R.Shaikh APP for State CORAM : S. S. SHINDE M. S. KARNIK JJ RESERVED ON : 19th AUGUST 2020 PRONOUNCED ON : 19th OCTOBER 2020 JUDGMENTThe appellant by this Appeal challenges the judgment and order dated 18 01 2016 passed by Additional Sessions Judge Nashik convicting the appellantfor the ofence punishable under section 376(2)(f) of the Indian Penal Codand sentencing him to sufer rigorous imprisonment for life and to pay fne of Rs.30 000 in default of payment of fne criminal 803.16.doc to sufer rigorous imprisonment for two years The prosecution case in brief is as under 2. The FIR Exhibit 17 was registered by Latagrandmother of the victim. The victim was about 3 years and 8 months of age on the date of the incident. P.W.1 complainant lodged report on 13 09 2014. P.W.1 was residing along with her husband son daughter in law and the victim Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 grand daughter. The incident took place on 12 09 2014 and it occurred around 3.00 p.m.. The victim went in the hotelwhile playing. P.W1 is the owner of the hotel which is just in front of her residence. The victim girl came home with a mobile phone. The accused told P.W.1 that the phone belongs to him and he had given the phone to the victim to play. Then P.W.1 carried on with her work. 10 15 minutes thereafter P.W.1 s husband came from the agricultural feld and enquired whereabouts of victim. P.W.1 informed him that she is playing in front of the house. The victim however was not found therefore they searched for her. P.W1 went towards the agricultural feld She heard noise of weeping from the agricultural feld. The same was of her granddaughter the victim. At that time P.W.1 saw the accused running from the feld towards the road 3. The victim had sufered injuries on her waist and blood was oozing from her private part. There were no underclothes on her person. P.W.1 made enquiry with the victim but she was too terrifed to disclose anything. The victim was taken to the hospital of Doctor Chandurkar in village Nandur Shingote. The victim was examined by Dr.Anita Satish Kanitkartook her in agricultural feld. He removed his pant & hers and slept on her person. P.W.1 realised that that the victim was subjected to sexual intercourse. P.W.1 approached Vavi Police Station and lodged FIR which is at Exhibit 17 5. The investigation was carried out by Mr.Hemant Subhash Patil Investing OfcerP.W.11. The IO criminal 803.16.doc visited the spot with two panchas and recorded the spot panchanama at Exhibit 27. The spot panchanama was recorded by Mr.Ramdas Savliram Sanap P.W.8 attached to the Vavi police station as police constable. Nandkumar Laxminarayan Ladhha P.W.2) is a panch witness of the spot panchanama. P.W.2 deposed that spot of incident is situated behind the dhaba. There was bajra crop standing in the fled. It was 4 to 5 feet high. The IO collected the blood stained soil and simple soil and leaves of the bajra crop having blood stains. The motorcycle used by the accused for coming to the spot of the incident was seized in the presence of 6. The victim was referred for medical examination on 13 09 2014 vide letter which is at Exhibit 61 Dr. Mahesh Arun Khairnar P.W.6 examined the victim. P.W.6 deposed that there was no external injury. On examination of genital parts labia majora was found edematous. Labia minora was bruised. There was bleeding from vulva. Hymen was torn at 6.00 O clock position. There was vaginal bleeding. During examination P.W.6 collected blood sample vaginal swab vulval swab for the purpose of analysis. P.W.6 Doctor opined on the basis of the examination that fndings are consistent with recent sexual assault. The certifcate at Exhibit 41 was issued by him. P.W.6 criminal 803.16.doc deposed that the injury was recent within 24 hours. The collected samples were handed over in a sealed condition to the police constable Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 7. The IO issued a letter Exhibit 63 to T.I.L.R Sinnar for drawing a map of the spot of the incident The accused was arrested on 17 09 2014 vide arrest panchanama Exhibit 64. Mr.Kiran Sopan Patil P.W.3 is the panch witness of seizure of clothes of the victim. The panchanama of the seizure of the clothes is at Exhibit 30. The clothes of the accused were seized by preparing the panchanama at Exhibit 33. P.W. 4 Santosh Dashrath Bhopi is a panch witness of this panchanama. The accused was sent for medical examination vide letter at Exhibit 65. Upon deposit of the clothes of the accused muddemal receipt obtained is at Exhibit 66 8. Mr.Vijay Lokhande P.W.9 was given two sealed packets and report to be handed over to the forensic science laboratory Panchavati Nashik. The said sealed packets were handed over on same date on 19 09 2014 9. After completing the investigation the IO submitted criminal 803.16.doc the charge sheet. The Session Judge framed the charge at Exhibit 2 on 13 11 2014. The accused pleaded not guilty and claimed to be tried vide his plea at Exhibit O 3. The prosecution examined as many as 11 witnesses By the impugned judgment and order the appellant was convicted and sentenced as mentioned 10. P.W.1 complainant deposed that the incident took place on 12 09 2014. Her granddaughter victim was playing in front of the hotel owned by her. The hotel is just in front of residential house of P.W.1. P.W.1 noticed the victim had a mobile phone. The accused came there and said that he had given it to the victim to play. P.W.1 went back to attend her work. 10 15 minutes thereafter P.W.1 s husband asked the whereabouts of victim. The victim was not seen around. They went in search of the victim. The victim was found weeping in the agricultural feld. P.W.1 saw the accused running towards the road from agricultural feld. The victim sustained injuries on her waist and blood was oozing from her private part. There was no knicker on her person. P.W.1 made enquiry with the victim but she was unable to disclose anything. The victim girl was 3 years and 8 months old at the time of incident. Thereafter she was taken to the hospital where she was examined by the Doctor P.W.5. Next criminal 803.16.doc day at 7.00 a.m. the victim disclosed to P.W.1 and victim s mother that the mobilewala babatook her to the agricultural feld. He removed her pant and slept on her person. He removed his pant as well. P.W.1 realised that the victim was subjected to sexual assault. She then fled FIR 11. P.W.1 was cross examined by the defence. The defence tried to suggest that the activities in the feld would not be visible from her house and therefore P.W.1 could not have noticed the incident or the accused running away from the feld. P.W.1 denied that the bajra crop was 6 feet high. The defence also tried to suggest that bajra crop was thick and the incident could not possibly have taken place in the agricultural feld. The defence tried to establish the innocence of the accused on the basis of initial history given by husband of P.W.1 to the doctor P.W.5 as nothing was recorded alleging any role of the accused. The defence case is that the victim went to answer nature s call in the agricultural feld which resulted in the injuries Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 12. The evidence of P.W.1 shows that when she was searching for the victim in the agricultural feld she saw the accused running towards the road from where the bajra crop was criminal 803.16.doc standing. The victim was found in the agricultural feld weeping. It is material to note that the agricultural feld of the complainant is right behind the dhaba and in the agricultural feld itself the house is also constructed. No doubt the complainant has admitted that if there is crop in the agricultural feld then the activities in the feld are not visible from the house. However the evidence of P.W.1 needs to be considered from the standpoint that P.W.1 complainant was in the agricultural feld when she saw the accused running away from the agricultural feld. The complainant was running away towards the road as deposed by P.W.1. It is not her testimony that she saw accused running away from her house. Nothing has been elicited in the cross examination of P.W.1 which casts a doubt on the veracity or truthfulness of her version. In our opinion nothing would turn on the contradiction brought on record as regards the presence of the complainant in the hospital where the victim was examined. From the evidence of P.W.5 Doctor it is seen that it is the grandfather of the victim who brought her to the hospital. P.W.5 has deposed that she examined the victim girl. The victim sustained genital injuries which P.W.5 Doctor treated. The injuries sustained by the victim is consistent with the prosecution case 13. We shall now consider whether the evidence of P.W.1 stands corroborated with the other evidence on record to prove beyond reasonable doubt the complicity of the accused in the crime 14. P.W.2 Nandkumar Laxminarayan Ladhha acted as a panch of the spot panchanama. P.W.8 Ramdas Savliram Sanap police constable was present at the time of spot panchanama. The spot of the incident was shown by P.W.1 complainant. The police collected the blood stained soil and blood stained roots of the bajra crop and the same came to be sealed by wrapping it. The police also seized the motorcycle of the accused by drawing panchanama at Exhibit 27 15. It is argued that non examination of victim is fatal to the prosecution. Admittedly the age of the victim girl is hardly 3 years and 8 months. Considering her tender age it cannot be expected of her to understand the questions asked by the prosecution. There can be no infrmity in the prosecution case only because of non examination of the victim. In such circumstances the evidence of P.W.1 complainant who is the grandmother of the victim and the other evidences on record criminal 803.16.doc obviously needs to be considered to fnd out whether the guilt of the accused can be brought home. It is signifcant to note that the presence of the accused is not denied by the defence 16. The evidence of complainant regarding the spot of the incident is corroborated by the evidence of P.W.2 Nandkumar Laddha and P.W.8 Ramdas Sanap police constable. They collected the blood stained soil and dried leaf of bajra crop and said articles were seized and sealed by afxing the labels The articles reached in seal condition for chemical analysis. There is no evidence of tampering. The said labels are at Exhibit 28 Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 17. So far as the medical evidence is concerned Dr.Ujwala Subhash Tejale was examined at Exhibit 76 as Court witness No.2. She deposed that on examination of genital parts of victim she found that Labia Majora was edematous Labia Minora was bruised vulva was having minimum bleeding Hymen was torn at 6 O Clock position. Vagina was bleeding. Dr.Ujwala opined that victim girl was subjected to sexual assault and the fndings are consistent with recent sexual intercourse. In the cross examination she admitted that there was history of criminal 803.16.doc mild abrasion on inner side of thigh and mild abrasions on genitals recorded by the Casualty Medical Ofcer. No doubt she admitted that there is possibility of injuries on back and buttock if the alleged incident has taken place on hard and rough surface like agricultural feld having bajra crop. She further admitted that such injuries are possible if a girl went to answer nature s call and while sitting such type of injuries can be caused by the small pieces of branch of roots. She admits that hymen can be torn completely in case of a sexual assault by a grown up man. These admissions form the basis of case of the defence that the victim sustained these injuries when she went to answer the nature s call. However these admissions do not in any manner afect the genesis of the prosecution version having regard to the quality of the clinching evidence on record which proves beyond reasonable doubt that the accused is the author of the crime 18. Immediately therefore it would be material to consider the evidence relied upon by the prosecution regarding the seizure of clothes of the victim girl and the accused. P.W.3 and P.W.4 are the panch witnesses of the seizure panchanama of the clothes. The said clothes are seized and sealed in their presence and label with their signatures are afxed. The said labels are at Exhibit 31 and Exhibit 34. Learned Counsel for the criminal 803.16.doc accused would invite our attention to the evidence of P.W.4 where he admits that there were no blood stains on the clothes. The incident in question occurred on 12 04 2014 whereas the accused was arrested on 17 04 2014 i.e. after 5 days In our opinion considering the time gap blood stains may not be visible 19. P.W.9 Vijay Ramesh Lokhande received the sealed samples to be handed over to CA. He handed over the samples to the CA Nashik along with letterhead Exhibit 55. The letterhead at Exhibit 55 clearly mentions that the muddemal mentioned in column No. 13 is handed over to police constable Vijay Lokhande in a sealed condition. If we consider CA reports at Exhibits 7 8 9 & 10 the same would show that the sealed parcels are received by CA Nashik. It is the prosecution case that initially articles were sent to CA Nashik for chemical analysis and thereafter CA Nashik forwarded it to CA Kalina Mumbai for DNA examination. Considering all these materials it is not possible for us to accept the contention of the defence that samples were not in a sealed condition The question of tampering is completely ruled out 20. Learned Counsel for the accused made an attempt to contend that no reliance should be placed on DNA analysis as CA Kalina had received stain cuttings and not the entire clothes and therefore there is possibility of tampering. DNA report however shows that stain cuttings of frock stain cuttings of full pant stain cuttings of underwear stain cuttings of full pant were received. The numbers mentioned in DNA profle were also matching. The Court witness Dr.Shrikant Hemant Lade has produced on record the letter received from CA Nashik wherein it is specifcally mentioned Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 that stain cuttings were forwarded for DNA analysis. DNA report shows that blood stains found on the underwear of the accused are of the victim girl. The complainant s version is thus corroborated by the medical and other evidence. Nothing is on record to indicate that there is enmity between P.W.1 and the accused hence possibility of a false implication is ruled out. There is even no suggestion in the cross examination of P.W.1 to this efect. The evidence of P.W.1 appears to be reliable and trustworthy corroborated by the other evidence on record 21. Let us now consider the evidence relating to the medical examination of the victim by witnesses i.e. P.W.5 Dr. Anita Satish Kanitkar P.W.6 Dr. Mahesh Arun Khairkar and Court criminal 803.16.doc witness No.2 Dr.Tejale. It is seen that the victim was initially examined by P.W.5 and thereafter by Dr.Tejale in civil hospital Nashik. The injuries as mentioned earlier were found on her person. It is opined that all these injuries are fresh injuries and that on the basis of the said injuries it can be opined that these injuries are possible due to sexual intercourse 22. We fnd no merit in the contentions of the accused that as the accused has not sustained any injuries on his private part his complicity is ruled out. The victim is only 3 years and 8 months old The trial Court has observed that "medical jurisprudence shows that in young children there are few or no signs of general violence for the child usually has no idea of what is happening and also incapable of resisting. The hymen is deeply situated and as the vagina is very small it is impossible for the penetration of the adult organ to take place. Usually the penis is placed either within the vulva or between the thighs. As such the hymen is usually intact and thereby may be little redness and tenderness of the vulva. To attract the provisions of section 376 of IPC complete penetration is not required slight penetration is also sufcient.t We are in agreement with the view of the trial Court that no beneft can be given to the criminal 803.16.doc accused merely because he has not sustained any injury on his private part 23. The DNA report specifcally shows that blood group of DNA extracted from the blood stains found on the underwear of the accused are of blood group of victim girl. The trial Court has correctly observed that no explanation is put forth by the accused about the blood of the victim girl found on his under garments. The accused has also not denied his presence on the spot of the incident 24. The contention of the learned Counsel for the appellant that delay in lodging FIR would enure to the beneft of accused lacks merit in the light of the law laid down by the Apex Court in the case of 1State of Punjab Vs. Gurmit Singh. The Apex Court observed that in sexual ofences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual ofence is generally lodged. Even if there is some delay in 1 AIR 1996 Supreme Court 1393 criminal 803.16.doc lodging FIR in respect of ofence of rape if it is properly explained and the explanation is natural in the facts and circumstances of the case such delay would not matter and is not fatal 25. In the present facts the evidence shows that on the date of the incident the victim was not in a position to narrate anything about the incident which is but natural considering her tender age. She Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 had to be taken to the hospital for treatment. It is next day morning on 13 09 2004 she disclosed about the incident. At 8.00 a.m. the report is lodged. The victim was hardly 3 years and 8 months old on the date of the incident. In such circumstances it cannot be said that there is any delay in lodging FIR. It can hardly be expected of her to reveal the manner in which the incident happened and that too with promptitude 26. We are satisfed that the prosecution has established beyond reasonable doubt that the accused is guilty of ofence alleged. Having gone through the order of the trial Court we are in respectful agreement with the well considered order passed by the trial Court. It is pertinent to refer to paragraph 56 of the trial criminal 803.16.doc Court s order which reads thus 56. After appreciating the entire evidence and proved circumstances on record by the prosecution I have no hesitation to hold that it is the accused who took the victim girl of 3 years and 8 months of age along with him and subjected her for sexual assault. The prosecution has proved through direct evidence of complainant grandmother of the victim girl. The evidence of grandmother of the victim is corroborated by various circumstances 1. Accused is seen running away from the spot of incident 2. Bloods stains are found at the spot of incident 3. Motor cycle of the accused was found near the spot of incident and it is seized from the spot of incident 4. Medical evidence of P.W.5 Dr. Kanitkar P.W.6 Dr.Khairkar and Court witness Medical Ofcer Dr.Tejale. The evidence of Dr.Tejale is not only in the nature of opinion but she has actually seen the injuries sustained in the private part of the victim girl and regarding the witnessing the injuries on the private part is the evidence which is direct in nature 5. DNA report shows blood stains found on the underwear of the accused are having DNA extracts of blood of victim girl 6. The seal of the DNA samples was intact from the seizure till its examination.t 27. It would also be material to reproduce paragraphs 65 & 66 of the trial Courts order which read criminal 803.16.doc "65. Heard both the sides. I have recapitalized the entire episode. It appears from the evidence on record that victim girl who is from the village of the accused aged about 3 years and 8 months was sexually assaulted by the accused on 12 09 2014. When victim girl was playing accused has handed over his mobile phone to her to play and taken her with him. She was taken in the agricultural feld of Bajra crop and subjected for sexual assault. The evidence on record Indian Kanoon Sudam Ramnath Shelke vs The State Of Maharashtra on 19 October 2020 shows that the grandmother of the victim girl has lodged report against the accused on 13 09 2014 Victim girl was found in the agricultural feld by grandmother in an injured condition. There was no knicker on her person and blood was oozing from her private part. She was immediately taken to private clinic. P.W.5 Dr.Kanitkar examined her and observed injuries in her private part. On the next day small girl disclosed to her mother and grandmother that Mobilewala Baba has taken her and removed her clothes. Thereafter report was lodged. She was referred for medical examination and Medical ofcer has observed that she was subjected for sexual assault. Not only the medical evidence but DNA report shows blood stains of the blood group of victim girl are found on the underwear of the accused. The evidence of Court Witness Chemical Analyzer Shri Lade specifcally shows that the blood stains of the blood group of victim girl was found on the underwear of the accused. Thus the entire evidence which is in the nature of direct evidence is corroborated by medical evidence. Though accused has submitted that he is implicated falsely but there is nothing on record to show that there was enmity between family of accused and family of victim girl. During cross examination no reason came forward to show that there was reason for the grandmother of the victim girl or her family members to implicate the accused falsely 66. The evidence on record shows that accused has committed a crime which is heinous in nature Accused has betrayed the trust of a small girl who was playing with the accused. The sexual assault on the children is one of the heinous crime. In the present case victim girl is only three years and 8 months of age. It is an ugly breach of our commitment to protect the innocent. The act of the accused shows that he has committed barbaric act and shown total disregard towards humanity.t 28. So far as question of punishment is concerned we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age a resident of the same village who betrayed the trust of the victim & became a violator deserves no leniency. We therefore do not fnd any infrmity in the order passed by the trial Court consequently Appeal is dismissed 29. This judgment will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order (S.S.SHINDE J Digitally signed by Urmila Urmila P Ingle P. Date 2020.10.19 Ingle 19:17:31 +0530 Indian Kanoon

Order issued by court with no jurisdiction becomes null and void in the eyes of the law if revision application is not maintainable in Revisional Court: Chhattisgarh High Court

An order issued by a court with no jurisdiction is void in the eyes of the law if a revision application is not maintainable before the Revisional Court. As a result, the Revisional Court’s order sustaining the learned Magistrate First Class’s order of complaint registration is likely to be nullified is upheld by the High Court of Chhattisgarh through the learned bench led by Hon’ble Shri Justice Narendra Kumar Vyas in the case of Sanjay Kumar Vaid Vs. Champa Lal Vaid (CRMP 566 of 2017) Brief facts of the case: The petitioner has filed the Cr.M.P. under Section 482 of the Cr.P.C., challenging the order of the Additional Sessions Judge (F.T.C.) Kabirdham. The petitioner is the nephew of respondent, Champa Lal Vaid and the son of Late Kamla Bai Vaid. It is claimed that the petitioner’s mother and respondent jointly owned property in Kawardha, and that Municipal Council Kawardha acquired a part of that property for the purpose of road widening. An sum of Rs. 3,52,460.00 was paid to respondent after deducting the amount of TDS of Rs. 40,472/- for the same. In 2012, the respondent filed a complaint with the Station House Officer alleging that the petitioner had illegally withdrawn an amount of T.D.S. by committing a cheating offence under Section 420 IPC that is refund of TDS was neither received by respondent nor Kamla Bai. The police submitted a report stating that the complaint was not deemed cognizable, and on February 25, 2013, respondent filed a complaint case under Section 200 of the Cr.P.C. before Chief Judicial Magistrate, Kawardha for the offence punishable under Sections 420, 467, 468, and 471 of the IPC. By order dated 13.05.2016, the learned Magistrate summoned a report from the concerned police station and, without reviewing the police report, recorded the complaint for the offence under Section 420 IPC. The petitioner filed a criminal revision with the Sessions Court, which was dismissed by the learned Revisional Court on January 28, 2017. Petitioner argue that the amount of refund from the income tax department is only payable to the PAN Card holder. No offence of cheating is possible as the Magistrate dismissed the petitioner’s revision without carefully considering the subject matter of the complaint, the documents on record.  The Magistrate made an error of law by dismissing the petitioner’s revision without carefully considering the subject matter of the complaint and the documents on record. Learned State counsel has also filed a return in which it claims that the order of the Judicial Magistrate First Class registering the complaint under Section 420 IPC against the petitioner is legal and justified because the petitioner has withdrawn the money through Pan No. and thus the petitioner has committed an offence under Section 420 IPC. In light of the judgement of the Court in Amarnath Agrawal Vs. Jai Singh Agrawal And Ors. (WP(Cr.) No. 116 of 2013) decided on February 10, 2015, the registration of the complaint cannot be questioned before the learned Revisional Court. It is apparent that a revision application under Section 397 Cr.P.C. contesting the registration of a complaint is not admissible and the Revisional Court dismissed the revision on the merits in this case. Thus, enough evidence against the petitioner to file a cheating case under Section 420 of the IPC (Cheating is defined in Section 415 of the IPC, and it is punished in Section 420 of the IPC). Further, the petitioner has argued that if the complainant records the material relating to the payment of money into the petitioner’s account, only a case of cheating can be made out against the petitioner, and that this case cannot be considered in light of the Supreme Court’s decision in Kaptan Singh v. State of Uttar Pradesh and Others. The Revisional Court’s order is not maintainable, and the documents on record support the conclusion that there is no basis for interfering with the registration of a complaint. As a result, the Cr.M.P. is liable to be dismissed, and is hereby dismissed. Additionally, For the purpose of adjudication of the current Criminal Miscellaneous Petition, the facts have been evaluated. The trial court is ordered to continue in conformity with the law, without being influenced by any of the observations made by the Court in deciding this Criminal Miscellaneous Petition, and to determine the case within two years of the parties’ first appearance.

1NAFRHIGH COURT OF CHHATTISGARH BILASPUR Reserved on 24 09 2021Pronounced on 07 12 2021CRMP No. 5617Sanjay Kumar Vaid S o Late Hukmichand Vaid Aged About 49 YearsR o Near Rishabhdev Chowk Bilaspur Road Kawardha TahsilKawardha District Kabirdham Chhattisgarh. Petitioner Versus 1.Champa Lal Vaid S o Nagraj Vaid Aged About 78 Years R o NearRishabhdev Chowk Bilaspur Road Kawardha Tahsil Kawardha District Kabirdham Chhattisgarh. 2.State Of Chhattisgarh Through The District Magistrate Kabirdham District Kabirdham Chhattisgarh. Respondents For petitioner: Shri Raj Kumar Pali AdvocateFor Respondent No. 1: Shri K.A. Ansari Sr. Advocate with Shri Aman Ansari AdvocateFor State: Shri Hariom Rai Panel Lawyer Hon ble Shri Justice Narendra Kumar VyasC.A.V. ORDER1.The petitioner has filed the present Cr.M.P. under Section 482 of theCr.P.C. challenging the order passed by the Additional SessionsJudgeKabirdham in Criminal Revision No. 24 2016 wherebylearned Revisional Court while dismissing the petition of thepetitioner has affirmed the order of the registration of criminal caseagainst the petitioner vide order dated 13.05.2016 passed by theChief Judicial Magistrate Kawardha District Kabirdham passed inCriminal Case No. 452 2016.2.The brief facts projected by the petitioner are that the petitioner is sonof Late Kamla Bai Vaid and nephew of respondent No. 1 Champa LalVaid. It is submitted that mother of the petitioner and respondent No.1 jointly owned property at Kawardha and some portion of the saidproperty was acquired by Municipal Council Kawardha for thepurpose of widening of the road. An amount of Rs. 3 52 460.00 was 2paid to respondent No. 1 and Kamla Bai jointly on 21.05.2008 afterdeducting the amount of TDS of Rs. 40 472 .3.The respondent has made complaint before the Station House Officerin the year 2012 that the petitioner has illegally withdrawn amount ofT.D.S. by committing offence of cheating under Section 420 IPC. Ithas been alleged that refund of TDS was neither received byrespondent No. 1 nor Kamla Bai. The police submitted its reportmentioning therein that the complaint is not found cognizable.Thereafter respondent No.1 filed a complaint case under Section 200of the Cr.P.C. on 25.02.2013 before Chief Judicial Magistrate Kawardha for the offence punishable under Sections 420 467 468and 471 of IPC. The learned Magistrate called report from theconcerned police station and without considering the report submittedby the police registered the complaint for the offence under Section420 IPC vide order dated 13.05.2016. The petitioner preferredcriminal revision before the Sessions Court and learned RevisionalCourt dismissed the criminal revision vide its order dated 28.01.2017.4.The learned counsel for the petitioner would submit that theMagistrate has committed error of law by dismissing the revision filedby the petitioner without considering the subject matter of thecomplaint minutely and documents placed on record. He wouldfurther submit that the amount of refund from the income taxdepartment is only payable to the PAN Card holder no offence ofcheating is possible. He would further submit that Kamla Bai washaving the Pan Card and the refund amount by cheque has alsobeen paid to her therefore the order passed by the Revisional Courton 28.01.2017 and registration of complaint by the Judicial Magistratemay kindly be set aside. 5.On the other hand learned State counsel has also filed return inwhich the State has said that the order passed by the JudicialMagistrate First Class registering the complaint under Section 420IPC against the petitioner is legal justified as the petitioner haswithdrawn the amount through Pan No. AGRPB2219H which belongsto the petitioner. Therefore the petitioner has committed offenceunder Section 420 IPC. Learned Judicial Magistrate rightly registeredthe complaint against which revision petition filed by the petitioner 3has also been rejected. Respondent No. 1 has not filed return andwould support the order of the revisional Court. 6.I have heard the learned counsel for the parties and perused therecord.7.This Court vide its order dated 13.07.2017 has called the record ofthe Court below. Before adverting to the legal submission raised bythe parties this Court has to examine whether the registration of thecomplaint by the Judicial Magistrate is revisable before the RevisionalCourt by way of revision under Section 397 of the Cr.P.C. or not It isnecessary to extract Section 397 of the Cr.P.C.: “Section 397 in The Code Of Criminal Procedure 1973 Callingfor records to exercise powers of revision.(1) The High Court or any Sessions Judge may call for andexamine the record of any proceeding before any inferiorCriminal Court situate within its or his local jurisdiction for thepurpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order recordedor passed and as to the regularity of any proceedings of suchinferior Court and may when calling for such record direct thatthe execution of any sentence or order be suspended and ifthe accused is in confinement that he be released on bail or onhis own bond pending the examination of the record.Explanation. All Magistrates whether Executive or Judicial andwhether exercising original or appellate jurisdiction shall bedeemed to be inferior to the Sessions Judge for the purposesof this sub section and of section 398.(2) The powers of revision conferred by sub sectionshall notbe exercised in relation to any interlocutory order passed in anyappeal inquiry trial or other proceeding.(3) If an application under this section has been made by anyperson either to the High Court or to the Sessions Judge nofurther application by the same person shall be entertained bythe other of them.” 8.The registration of complaint cannot be questionable before thelearned Revisional Court in view of the judgment passed by thecoordinate Bench of this Court in WP(Cr.) No. 1113(Amarnath Agrawal Vs. Jai Singh Agrawal And Ors.) decided on10th February 2015. The coordinate Bench of this Court consideringthe law on the subject has held in paragraphs 16 17 and 21 asunder: “16. The moot question is if a revision application against mere 4registration of FIR by the police is not maintainable whethersuch revision would be held maintainable when the Magistrateonly directs registration of FIR. In the opinion of this Court theanswer is an emphatic No. Exercise of revisory powerconferred by the Court under Section 397 read with Section401 of the Code would occasion when there is an order passedby the competent court which is not interlocutory in nature however the said power cannot be exercised to quash the FIRor investigation because such power can be exercised only bythe High Court under section 482 of the code or under Article226 227 of the Constitution of India. If the revision application isconsidered to be maintainable before the Sessions Courtagainst an order passed by the Magistrate under Section 156(3) and if such revision is allowed it would have effect ofquashing the FIR therefore if the Sessions Court has no suchpowers otherwise it cannot do so by entertaining a revisionagainst an order passed by the Magistrate under Section 156(3) of the Code. 17. Referring to its earlier decisions in DevarapalliLakshminarayana Reddy and Others v. V. Narayana Reddyand Others3 SCC 252) and Tula Ram and Others v.Kishore Singh4 SCC 459) the Supreme Court inSrinivas Gundluri and Others v. Sepco Electric PowerConstruction Corporation and Others8 SCC 206) hasheld that when a Magistrate orders investigation under Section156of the Code without examining merits of the claim theMagistrate does not bring into motion the machinery of ChapterXV of the Code therefore the Magistrate has not takencognizance of the matter and as such when such direction forinvestigation is made the Magistrate does not commit anyillegality. Even after receipt of such report the Magistrate undersection 190 of the code may or may not take cognizance of theoffence. Thus at the stage of directing investigation theMagistrate having not applied its mind as it has not takencognizance of the matter there is no order of the Magistratewhich can be revised under Section 397 read with Section401 of the Code. What is revisable under section 397 of thecode is the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularityof any proceeding of such inferior court against whose orderthe revision application has been preferred. When there is nofinding sentence or order against the accused the same is notrevisable under section 397 of the code. 21. The legal position which would emerge from the abovereferred judgments of the Supreme Court is as follows: Investigation into a cognizable offence by Inchargeof jurisdictional police station is a statutory power. Oncean information is sent to the jurisdictional policeregarding commission of a cognizable offence it is thestatutory duty of the said police to investigate offence.{Lalita KumariSri Bhagwan SamardhaSreepada Vallabha Venkata Vishwanandha Maharaj(supra) and Rajesh Gandhiof the Cr.P.C. Magistrate isconferred limited power to ensure that the policeinvestigate all cognizable offences and do not refuse todo so by abusing the right granted for certain limitedcases of not proceeding with the investigation of theoffence {Dharmeshbhai Vasudevbhaiis at the pre cognizance stage. Such exercise isdone by the Magistrate when the concerned police officerfails to investigate the matter as is obligatory upon him. To exercise revisory power under Section 397 theCourt whose order is sought to be revised must haverecorded some finding order or sentence or have drawna proceeding which is ex facie illegal or withoutjurisdiction. While directing the police officer toinvestigate the matter the Magistrate neither records anyfinding nor passes any order or sentence against theaccused because at that stage the registration of FIR isonly against the prospective accused. If it is held that an order under Section 156ofthe Code is revisable the same would amount to clothingthe Sessions Court with the power of quashing the FIR orinvestigation. Such power is conferred only on the HighCourt under section 482 of the code or under Article226 227 of the Constitution of India.”9.From the afore stated legal position it is quite clear that revisionapplication under Section 397 Cr.P.C. challenging the registration ofcomplaint is not maintainable though in the present case theRevisional Court has dismissed the revision on merits which isagainst the law. As once revision application itself is not maintainablebefore the Revisional Court then order passed by Court having nojurisdiction is nullity in the eye of law. As such the order of theRevisional Court affirming the order of registration of the complaint bythe learned Magistrate First Class is liable to be quashed. 10.Since the petitioner has also challenged the registration of complainton the count that Kamla Bai was having pan card and the amountwas also paid to Kamla Bai through cheque as cheque has been 6deposited in the account of Kamla Bai. The learned Court below failedto consider report submitted by the police where after recording of thestatement of Kamla Bai they submitted that no offence is made outfor registration of complaint still the Judicial Magistrate First Classhas registered the complaint which is nothing but an abuse of processof law to create pressure on the petitioner with ulterior motive.Therefore the learned counsel for the petitioner would submit that thepetition under Section 482 of the Cr.P.C. be allowed and order ofregistration of complaint on 13.05.2016 be kindly quashed 11.For better understanding of the facts of the case it is expedient toextract relevant paragraphs of the complaint which are as below: “5. g fd ifjoknh us viuk isu uEcj fn k gS u gh mDr jkf k fudkyus dksLohd`fr fn k gS ds ckn Hkh mDr jkf k vfHk qDr }kjk fudky fy k x k gSA6 g fd ifjoknh vk dj dh jkf k gsrq jktukanxkao vkfQl x k o irk fd k rksvkWfQl esa mDr Vh0 Mh0 l0 dh jde fudky ysuk crk k x k oa vfHk qDr}kjk gh fudkyuk crk k x kA7] g fd mDr jde dks fudkyus dk vf kdkj vfHk qDr dh eka deykckbZ dks kifjoknh dks Fkk ij nksuksa us jde ugha fudkys o vfHk qDr us NyiqoZd mDrjkf k fudkyk gSA8 g fd uxj ikfydk do kkZ fcuk tkap fd s oa fcuk fdlh vf kdkj dstkucw>dj vk dj nkrk dks jde nsuk crk k gS tcfd u rks ifjoknh viukisu uEcj fn k gS u ghs vfHk qDr dhs eka deykckbZ dk isu uEcj gS] vfHk qDrNy dj viuk isu uEcj dk mi ksx dj ifjoknh ls Ny fd k oa Ny djjde fudky fy k gSA10 g fd uxj ikfydk do kkZ }kjk deykckbZ oa ifjoknh ds lq qDr uke lsVh0Mh0 l0 lfVZfQdsV tkjh fd k x k gS ijUrq mlds isu uEcj nksuksa esa lsfdlh dk Hkh mYysf[kr ughs gS] ifjoknh }kjk laidZ fd s tkus ijvk0vkbZ0Vh0 ds varxZr fnukad 28@11@2011 dks uxj ikfydk }kjk crk kx k fd djnkrk }kjk miyC k djk x isu uEcj 22194 Vh Mh l dh jkf kdk Hkqxrku fd k x k gS tcfd g isu nksuksa TokbZUV ilZu dk ugha gS rFkkvk dj foHkkx }kjk isu dkMZ tks b w fd k tkrk gS mlesa isudkMZ kkjh dkuke] firk dk uke] isu uacj rFkk tUe frfFk vafdr jgrk gSA bl izdkj uxjikfydk }kjk xyr isu uEcj dk mi ksx dj Vh Mh l xyr dkmUV essatek fd k x kA13 g fd vfHk qDr dks dksbZ vf kdkj ugha Fkk fd og Vh Mh l dh jkf k izkIrdj lds fdarq rRdkyhu eq[ uxj ikfydk vf kdkjh ls feyhHkxr djvfHk qDr us ifjoknh oa vU ds uke ls vkcafVr eqvkotk jkf k ds fo:) Vh Mh l dh jkf k QthZ isu dkMZ ds ek e ls 40]472@& :i s QthZ vkgj.kfd k gSA rFkk vk dj vf kdkjh jktukanxkao ls ifjoknh us iqNrkN fd k rctkudkjh gqbZ fd ifjoknh oa deykckbZ cSn ds uke ij LFkkbZ ys[kkla[ k w Dlihch 2940 p oa vkbZdsih 3428 vkj ntZ Fkk vkSj Vh Mh l jkf k 40]472 :i s dk izek.k i= izk:i&16 uxj ikfydk ifj"kn ds rRdkyhueq[ uxj ikfydkf kdkjh us vfHk qDr ds uke ls tkjh fd k gS tks djfu kkZj.k o"kZ 2009&10 foRrh o"kZ 2008&09 ds fy tkjh fd k x k gS vkSjvk dj vf kdkjh egksn us g Hkh crk k fd nksuksa nkosnkj }kjk vk djfooj.kh nkf[ky ugha fd k x k gS vkSj u gh nkosnkjh izLrqr dh Fkh blfy 7nksuks nkosnkjksa dks vk dj foHkkx }kjk fjQ.M tkjh djus dk iz u mifLFkrugha gksrkA bl rjg g Li"V Fkk fd ifjoknh us Vh Mh l jkf k fjQ.M dsfy s dksbZ vkosnu izLrqr ugha fd k vkSj u gh mls jkf k izkIr gqbZ gS]vfHk qDr us ifjoknh dk dwVjfpr isu dkMZ uEcj rS kj dj ifjoknh ds ukels tek jkf k Vh Mh l dh jkf k 40]472@& :i s NyiwoZd csbekuh ls izkIrfd k gS tks kkjk 420 Hkk na fo 467] 468] 471 Hkk na fo ds rgr~ naMuh vijk k gSA”12.From bare perusal of the above mentioned paragraphs of thecomplaint it is clear that prima facie sufficient material is availableagainst the petitioner for registration of complaint for cheating underSection 420 IPC. Section 415 of the IPC which defines cheating andSection 420 IPC which provides the punishment for cheating areextracted below : “Section 415 of the IPC Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived todeliver any property to any person or to consent that anyperson shall retain any property or intentionally induces theperson so deceived to do or omit to do anything which hewould not do or omit if he were not so deceived and which actor omission causes or is likely to cause damage or harm to thatperson in body mind reputation or property is said to "cheat".Section 420 of the IPC Cheating and dishonestly inducingdelivery of property.—Whoever cheats and thereby dishonestlyinduces the person deceived to deliver any property to anyperson or to make alter or destroy the whole or any part of avaluable security or anything which is signed or sealed andwhich is capable of being converted into a valuable security shall be punished with imprisonment of either description for aterm which may extend to seven years and shall also be liableto fine.”13.The petitioner has raised grounds that the complainant should placeon record the material with regard to payment of amount in thepetitioner’s account then only offence of cheating can be made outagainst the petitioner. This is his defence which has been taken bythe petitioner and it cannot be considered in the light of the judgmentof Hon ble Supreme Court in case of Kaptan Singh v. State of UttarPradesh and others1. Relevant part of the judgment is extractedbelow: “9.2 In the case of Dhruvaram Murlidhar Sonarafterconsidering the decisions of this Court in Bhajan Lalitis held by this Court that exercise of powers under Section 482Cr.P.C. to quash the proceedings is an exception and not a1AIR 2021 SC 3931 8rule. It is further observed that inherent jurisdiction underSection 482 Cr.P.C. though wide is to be exercised sparingly carefully and with caution only when such exercise is justifiedby tests specifically laid down in section itself. It is furtherobserved that appreciation of evidence is not permissible at thestage of quashing of proceedings in exercise of powers underSection 482 Cr.P.C. Similar view has been expressed by thisCourt in the case of Arvind KhannaManagipetreferred to hereinabove. 9.3 Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand we are of theopinion that the High Court has exceeded its jurisdiction inquashing the criminal proceedings in exercise of powers underSection 482 Cr.P.C.”14.In view of the fact that the order of the Revisional Court is notmaintainable and considering the materials available on record I amof the view that no ground for interference with the registration ofcomplaint is made out. Therefore the Cr.M.P. liable to be and ishereby dismissed.15.With the aforesaid observations and directions the present Cr.M.P.is dismissed. 16.It is made clear that this Court has not expressed anything on themerits of the case. The facts have been considered for adjudicationof the present Criminal Miscellaneous Petition. The trial Court isdirected to proceed further in accordance with law without beinginfluenced by any of the observations made by this Court whiledeciding this Criminal Miscellaneous Petition and decide the casewithin an outer limit of 2 years from the date of appearance of theparties. The complainant and accused are directed to appear beforethe learned Judicial Magistrate First Class on 04.01.2022. Therecords of the trial Court be sent back forthwith. Sd Judge kishore

If the dispute is predominantly civil in nature, the offences, though, non compoundable can be quashed by this Court: High Court of J&K and Ladakh

It is settled law that once the dispute is predominantly civil in nature and is not against the society, the offences, though, non compoundable can be quashed by the High Court while exercising powers under Section 482 Cr. P. C. As held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Rajnesh Oswal in the case of Manohar Lal and others Vs UT of J&K and others [CRM (M) No. 628/2021 CrlM No. 1903/2021]. Brief facts of the case are that the petitioners have filed the present petition under section 482 Cr.P.C. for quashing the criminal challan, titled, UT of J&K Vs Drashan Lal and others arising out of FIR bearing No. 196 of 2020 dated 23.07.2020 registered with Police Station, Domana, Jammu for commission of offences under Sections 447 and 147 IPC, pending before the Court of learned Excise Magistrate, Jammu on the ground that the petitioners and the respondent No. 3 have entered into a compromise and pursuant to that compromise, the parties have undertaken to withdraw all the litigations pending against them. The respondent submits that in view of the compromise arrived at between him and the petitioners, he has no objection in case this Court quashes the criminal challan mentioned above. Learned counsel for the official respondent submits that in light of the present facts and circumstances of the case, appropriate orders as this Court deem fit may be passed. The Hon’ble High Court after a perusal of the record observed that the dispute between the parties is with regard to the land regarding which the FIR was lodged by respondent No. 3 and now the parties have settled their dispute. The offence under Section 147 is non compoundable, whereas the other offence mentioned above is compoundable. It is settled law that once the dispute is predominantly civil in nature and is not against the society, the offences, though, non compoundable can be quashed by this Court while exercising powers under Section 482 Cr. P. C. In conclusion, the Hon’ble High Court, while referring to the Judgment of Supreme Court in the case of State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, stated that “In view of the above, the present petition is allowed and the criminal challan, titled, Union Territory of J&K Vs. Drashan Lal and others arising out of FIR bearing No. 196 of 2020 dated 23.07.2020 registered with Police Station, Domana, Jammu for commission of offences under Sections 447, 147 IPC, pending before the Court of learned Excise Magistrate, Jammu is quashed”

Sr. No. 40 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRMNo. 628 2021 CrlM No. 1903 2021 Manohar Lal and others …..Appellant(s) Petitioner(s) UT of J&K and others Through: Mr. Maneesh Rampal Advocate. Petitioners in person …. Respondent(s) Through: Mr. Jamrodh Singh GA vice Mr. Aseem Sawhney AAG for Nos. 1 and 2 Mr. Z. A. Bhatti Advocate for No. 3 Respondent No. 3 in person Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioners have filed the present petition under section 482 Cr.P.C. for quashing the criminal challan titled UT of J&K Vs Drashan Lal and others arising out of FIR bearing No. 1920 dated 23.07.2020 registered with Police Station Domana Jammu for commission of offences under Sections 447 and 147 IPC pending before the Court of learned Excise Magistrate Jammu on the ground that the petitioners and the respondent No. 3 have entered into a compromise and pursuant to that compromise the parties have undertaken to withdraw all the litigations pending against them. 2 CRMNo. 628 2021 The respondent No. 3 is present in the Court and he is identified by his counsel. He submits that in view of the compromise arrived at between him and the petitioners he has no objection in case this Court quashes the criminal challan mentioned above. The copy of the compromise deed is annexed with the petition. Learned counsel for the official respondent submits that in light of the present facts and circumstances of the case appropriate orders as this Court deem fit may be passed. The dispute between the parties is with regard to the land regarding which the FIR was lodged by respondent No. 3 and now the parties have settled their dispute. The offence under Section 147 is non compoundable whereas the other offence mentioned above compoundable. It is settled law that once the dispute is predominantly civil in nature and is not against the society the offences though non compoundable can be quashed by this Court while exercising powers under Section 482 Cr. P. C. Reliance is placed on the judgment of the Apex Court in case titled State of M.P. v. Laxmi Narayan 5 SCC 688 in which the Apex Court has held: ‘14. Now so far as the conflict between the decisions of this Court in Narinder Singh6 SCC 466 : 3 SCC 54] and Shambhu Kewat4 SCC 149 : 4 SCC Rajasthan v. Shambhu Kewat 4 SCC 149 : 4 SCC Cri) 781] this Court has noted the difference between the power of compounding of offences conferred on a court under Section 320 CrPC and the powers conferred under Section 482 CrPC for quashing of criminal proceedings by the High Court. In the said decision this Court further observed that in compounding the in Shambhu KewatNo. 628 2021 offences the power of a criminal court is circumscribed by the provisions contained in Section 320 CrPC and the court is guided solely and squarely thereby while on the other hand the formation of opinion by the High Court for quashing criminal proceedings or criminal complaint under Section 482 CrPC is guided by the material on record as to whether ends of justice would justify such exercise of power although ultimate consequence may be acquittal or dismissal of indictment. However in the subsequent decision in Narinder Singh6 SCC 466 :3 SCC54] the very Bench ultimately concluded in para 29 as under : “29. In view of the aforesaid discussion we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal 29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: i) ends of justice or ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. the other hand 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Similarly for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the those criminal cases having 29.4. On overwhelmingly and predominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among 29.5. While exercising its powers the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally 4 CRMNo. 628 2021 treated as crime against the society and not against the individual alone. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to proving the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the vital delicate parts of the body nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement to quash the criminal proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime.” In view of the above the present petition is allowed and the criminal challan titled Union Territory of J&K Vs. Drashan Lal and others arising out of FIR bearing No. 1920 dated 23.07.2020 registered with Police Station Domana Jammu for commission of offences under 5 CRMNo. 628 2021 Sections 447 147 IPC pending before the Court of learned Excise Magistrate Jammu is quashed. Disposed of. JUDGE Whether the order is speaking: Whether the order is reportable:

Excess payment made to Group-C staff cannot be recovered by the state: High Court of Orissa

Group-C staff refers to government employees who usually undertake supportive and non-supervisory tasks and have salaries between Rs.18,000 and Rs.29,200. If any excess payment is made to staff belonging to this category, the state does not have to right to recover it. This was held by a bench of the High Court of Orissa consisting of Justice Dr. S. Muralidhar and Justice S.K. Panigrahi in the case of State of Odisha v Ashokarani Mishra [W.P.(C) No. 21772 of 2019] on 24th June 2021. The immediate writ petition was filed by the state of Odisha challenging the order passed by the Odisha Administrative Tribunal, Bhubaneswar  on 7th February 2019. The opposite party, Ashokarani Mishra is a staff nurse who was working for a state hospital. The main issue of the petition is whether the opposite party along with other nurses should get their revised pay scale in terms of the government resolution retrospectively or prospectively. Since the nurses were not getting salaries on par with other nurses working for the government of India, the anomaly committee recommended upward revision of the pay scale and sent the proposal to the petitioner.  The state government’s Health and Family Welfare Department issues a clarification stating that the revised pay scale would not have retrospective effect and that the resolution should be implemented only from the date of its publication. Acting on this the CDMOs issued a direction to recover any excess dues already paid to the opposite part. The Odisha Administrative Tribunal ruled in favour of the opposite party, declaring that she would be entitled to the revised pay scale from the respective dates of their regularisation. It was noted that the opposite party as a staff nurse, belonged to the Group-C staff category. In the case of State of Punjab v Rafiq Masih (White Washer) [2015 (4) SCC 334], the Supreme Court of India held that any excess payment, if all at all could not be recovered from Group-C staff.

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.217719 State of Odisha Ashokarani Mishra Petitioner Mr. L. Samantaray A.G.A. Versus Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.(C) No.263717 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Madhusmita Swain …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.(C) No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Basanti Toppo …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Gitarani Nayak …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Menaka Swain …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Nirupama Pal …. Opposite Party Mr. Surya Narayan Patnaik Advocate 2 W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Mamata Manjari Satapathy …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.264217 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Sitabati Kujur …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.20321 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Anupama Naik …. Opposite Party Mr. Prakash Kumar Rout Advocate W.P.No.22821 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Mamata Dash …. Opposite Party Mr. Prakash Kumar Rout Advocate CORAM: THE CHIEF JUSTICE JUSTICE S.K. PANIGRAHI 1. This matter is taken up by video conferencing mode. Order No. 09. 3 2. The present writ petitions have been filed challenging the order dated 7th February 2019 passed by the Odisha Administrative Tribunal Bhubaneswar in a series of applications where issues involved are identical in nature. Accordingly all these writ petitions filed by the State of Odisha against the said orders are disposed of by this common order. 3. The common issue in all these writ petitions is whether the Opposite Parties who are Staff Nurses should get their revised pay scale in terms of the Government Resolution issued on 26th June 2013 prospectively three years after regularization or retrospectively i.e. from the date of their regularization 4. The OAT has answered the question in favour of the nurses and held that they would be entitled to the revised pay scale from the respective dates of their regularization. Consequently the OAT quashed the clarification dated 17th May 2015 issued by the Health & Family Welfare Department and an order dated 31st May 2014 refixing the revised pay scale of the Opposite Parties as well as the letter dated 12th September 2014 issued by the CDMO of various districts directing recovery of the excess payments. The OAT issued a positive direction to the Petitioner to pay the Opposite Parties the revised scale of pay in terms of the earlier order dated 1st March 2014. 5. The background facts are that each of the Opposite Parties was appointed as Staff Nurse on contractual basis. After 4 completion of the contractual period of engagement each of them was regularized in service in the scale of pay of Rs.5200 20 200 with a Grade Pay of Rs.2800 . 6. Since they were not getting the salary component at par with their counterpart Staff Nurses in the Govt. of India the Opposite Parties represented to the Petitioner. The matter of discrepancy in fixation of their salary was referred to the Anomaly Committee. After taking note of a comparative study of the entry level qualifications service conditions and the scale of pay in various states the Anomaly Committee recommended upward revision of the pay scale and sent its proposal to the Petitioner State. 7. Acting on the said recommendation in exercise of the power under Rule 9 of the Odisha Revision of Scale of Pay Rules 2008 ORSP Rules) the Petitioner restructured the pay scale for its Staff Nurses but mandated that the revised pay scale would be payable on their completing three years of service in the regular scale of pay. The resolution dated 26th June 2013 was issued to the above effect. 8. The question that then arose was whether the revised scale of pay would become payable only after completion of 3 years as regular Staff Nurse or would become payable from the date when the regularization in fact took place Initially the CDMOs understood the above resolution to mean that the revised pay scale would become available regular Nurses 5 retrospectively from the date of their regularization. However within a year on 17th May 2014 the Health and Family Welfare Department issued a clarification stating that the revised pay scale would not have retrospective effect and that the resolution should be implemented from the date of its publication. Acting on this the CDMOs issued fresh orders modifying the earlier instructions on the revision of the scale of pay and across the board stating that it would be applicable only from 26th June 2013. A further direction was issued on 31st May 2014 that the excess dues already paid should be recovered from the salary of the Opposite Parties or they could opt to deposit the entire excess amount in one instalment. 9. This was then challenged before the OAT by the Opposite Parties by filing their respective applications. In the impugned order the OAT has noticed that there was nothing in the resolution dated 26th June 2013 indicating that the revised pay would take effect only prospectively. Accordingly the OAT proceeded to quash the subsequent clarification to that effect issued by the Petitioner. 10. As regards recovery of the excess pay since each of the Opposite Parties was a Group C staff the OAT was of the view that the excess payment if at all could not be recovered on the strength of the judgment of the Supreme Court in State of Punjab v. Rafiq Masih2015SCC 334. 11. This Court heard the submissions of Mr. L. Samantaray learned Addl. Govt. Advocate for the State and Mr. Surya 6 Narayan Patnaik and Mr. Prakash Kumar Rout learned counsel for the Opposite Parties. 12. Once the Anomaly Committee recommended removal of anomalies and recommended the revision of the pay scale of regular Staff Nurses clearly the revised pay scale would become applicable from the date of the regularization itself. The recommendation of the Anomaly Committee was not to the effect that the revised pay scale should be made available prospectively as and when it was notified by the Petitioner Government. That being the position when the notification dated 26th June 2013 was issued the rider inserted by the Petitioner that it would become payable on completion of 3 years in the regular pay scale was unwarranted. That did not reflect the true intention of the Anomaly Committee. 13. A parallel could be drawn with any other pay scale revision. For e.g. the National Pay Commission’s recommendations. There too the discrepancies are sought to be removed by referring the matters to the Anomaly Committee and whenever such Anomaly Committee clarifies the issue and recommends re fixing the pay scale that is given effect to from the date when the recommendation of the Pay Commission became effective. In other words the operation of the revised pay scale would not be postponed to different dates unless expressly stated in the notification for reasons to be given. 14. In the present case there was no occasion to postpone the applicability of the revised pay scales to a later date. The original 7 Government Resolution issued on 26th June 2013 was not intended to make the revised pay scales applicable only from the date of such resolution. 15. Further since the Opposite Parties are in Group C posts the decision in the case of Rafiq Masihwould apply and no recovery of any alleged excess payment can be made. 16. Therefore no grounds have been made out for interference with the impugned order of the OAT. The writ petitions are dismissed but in the circumstances with no orders as to costs. Chief Justice S.K. Parida S.K. Panigrahi) Judge

The husband cannot take subterfuges to deprive his wife of the benefit of living with dignity: Tripura High Court

The husband is unable to take subterfuges to rob her of a dignified life. As the solemn undertaking was required in marriage, and as a result, it is also a duty on the husband to see that the wife does not become an impoverished, beggar, acting following the statutory law governing the region. A circumstance should not be produced maliciously if she is forced to resign her destiny and think of life as dust to dust. It is unacceptable. The judgement was passed by the High Court of Tripura in the case of Ramendra Kishore Bhattacharjee v. Madhurima Bhattacharjee [Crl.Rev.P.No.36 of 2020] by Single Bench consisting of Hon’ble Justice MR. S.G.Chattopadhyay. The facts of the case are an application under Section 12 of the DV Act was filed in the court of the Judicial Magistrate of the First class against the petitioner seeking various reliefs under the DV Act wherein respondent referred to several incidents of domestic violence against her husband. The present writ petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, against the judgment of the session court. Learned counsel for the appellant has also contended that where there is no evidence of domestic violence, the wife is not entitled to any relief under the DV Act. In this regard learned counsel has relied on the Apex Court judgment passed in Sangita Saha vs. Abhijit Saha And Others, wherein the Apex Court has held that petitioner is entitled to relief under the DV Act only in case she establishes domestic violence. He further also contended that in absence of the proof of the ingredients of domestic violence, the wife is not entitled to relief provided under the DV Act. Learned counsel for the respondent contends that admittedly the husband is a government employee having a monthly salary of not less than ₹50,000 who is quite able to maintain his wife. Learned counsel contended that the wife by producing cogent and coherent evidence proved that she was subjected to domestic violence by her husband and the courts below on appreciation of her evidence and the entire facts and circumstances of the case granted the reliefs to her under the DV Act. It is, therefore, submitted by him that there is no reason to interfere with the findings of the courts below. According to learned counsel, the wife is entitled to the same standard of living as she would have lived in the house of her husband and therefore, the trial court rightly granted ₹15,000/- per month as monetary relief to her which was also upheld by the appellate court. While giving reliance on Delhi High Court judgment Babita Bisht vs. Dharmender Singh Bisht wherein it was noted that, “it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour or if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”

HIGH COURT OF TRIPURA Crl. Rev. P. 816 Sri Suman Debnath Son of Sri Sunil Debnath Resident of Village Mohinipur PS: Sidhai District West Tripura. Petitioner(s) The State of Tripura Represented by the Secretary Home Department Government of Tripura Agartala West Tripura Respondent(s) For Petitioner(s) For Respondent(s) Date of hearing : Mr. S.C. Majumder Adv. : Mr. S. Ghosh Addl. P.P. : 11.12.2020. Date of pronouncement : 10.02.2021 Whether fit for reporting : √ No B E F O R E HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY J u d g m e n t & O r d e r 1] This criminal revision petition has been challenging the judgment dated 30.06.2016 delivered by the Crl. Rev. P. 816 Additional Sessions JudgeWest Tripura Agartala in case No. Criminal Appeal 116 affirming the judgment order dated 14.01.2016 of the learned Judicial Magistrate First Class West Tripura Agartala delivered in case No. PRC 362 of 2014 whereby the convict petitioner namely Suman Debnath along with 5 others was convicted and sentenced to pay fine of Rs.400 each with default stipulation for having committed offence punishable under section 342 of the Indian Penal Code and further convicted and sentenced to fine of Rs.400 with default stipulation for offence punishable under section 323 IPC. Brief facts of the case are as under: Sri Utpal Debbarma son of Sri Kartik Debbarma of village Surendranagar police station Sidhai of the West Tripura district lodged an FIR with the officer in charge of Sidhai police station on 01.04.2014 at 09.15 pm alleging that on the previous day convict Uttam Paul called the informant over telephone to come to Jagatpur. When the informantarrived at Jagatpur pursuant to such telephonic call all the convicts together with the convict petitioner assaulted him with a lathiand fled from there leaving the injured informant. With bleeding injuries all over his body the informant started for help. Following his cry people Crl. Rev. P. 816 neighbourhood appeared there and brought the informant to Mohanpur hospital Thereafter the informant lodged the said FIR at the police station wherein he also alleged that as a result of the assault his left eye was damaged. Based on his FIR Sidhai P.S case No. 32 of 2014 under section 325 read with section 34 IPC was registered and the investigation was taken up. During investigation the investigating officer visited the crime scene on 02.04.2014 and recovered and seized vide seizure list a separated branch of tree measuring 2cubits in length and 3pieces of bamboo which were allegedly used by the convicts for beating the informant. This apart Maruti Suzuki vehicle bearing registration No. TR 01A 0469 along with the documents of the vehicle was also seized by the investigating officer vide seizure list which was allegedly used by the convicts for transporting the informant from his house to the place of occurrence. The injury report was also collected by the investigating officer hand sketch map Exbt.7 1] was drawn up and the material witnesses were examined under section 161 Cr.P.C and their statements were also recorded. At the conclusion of trial he submitted charge sheet No. 214 dated 30.05.2014 against the 6FIR Crl. Rev. P. 816 named accused for having committed offence punishable under sections 342 323 and 506 read with section 34 IPC. The learned Additional Chief Judicial Magistrate West Tripura Agartala vide order dated 18.06.2014 received the charge sheet and placed the matter before the learned Chief Judicial Magistrate who had taken cognizance of offence punishable under sections 342 323 and 506 read with section 34 IPC vide order dated 27.06.2014 and then transferred the case to the court of learned Judicial Magistrate First Class at Agartala for trial. At the commencement of trial the substance of accusation was read over and explained to the 6 charge sheeted accused including the present petitioner in terms of section 251 of the Code of Criminal Procedure 1973witnesses PW 1 to PW 13] were examined on behalf of the prosecution and 10documentswere exhibited and relied upon. Besides the exhibited documents prosecution also relied on Exbt.MO.1 i.e. the weapon of offence. At the conclusion of the prosecution evidence all the 6 accused were separately examined by the learned trial court under section 313 Cr.P.C and their replies were Crl. Rev. P. 816 recorded by the learned trial judge. They pleaded innocence and claimed that the charges were foisted on them. All declined to adduce any witness on their defence. Having appreciated the evidence and the attending facts and circumstances of the case the learned trial court vide judgment dated 14.01.2016 held all the accused including the present petitioner guilty of offence under sections 342 and 323 IPC and convicted them. In view of the fact that none of the convicts had any past criminal record the learned trial court instead of imposing any corporeal punishment on them sentenced them to fine of Rs.400 with default stipulation for offence punishable under section 342 IPC and the same amount of fine with default stipulation was also imposed to each of them for having committed offence punishable under section 323 IPC and it was ordered that the whole fine shall be paid to the victim. In appeal the learned Sessions Judge by the impugned judgment aforesaid upheld their conviction and sentence without any modification. One of the convicts namely Suman Debnath has challenged the impugned judgment in this criminal revision petition. Crl. Rev. P. 816 10] Heard Mr. S.C. Majumder learned counsel appearing for the petitioner as well as Mr. S. Ghosh learned Addl. P.P representing the State respondent. 11] Appearing for the petitioner Mr. S.C. Majumder learned advocate has argued that the learned courts below did not take into consideration the evidence of PW 5 brother of the informant who clearly stated at the trial that the informant was man handled by some unknown people in connection with the theft of bicycle. Further submission on behalf of the petitioner is that the courts below did not also appreciate the infirmities appearing in the prosecution evidence and as a result the judgments delivered by them are erroneous and unsustainable. It has been further argued by learned counsel of the petitioner that in view of the fact that there is no past criminal record of the petitioner he should have been released after due admonition under the Probation of Offenders Act 1958. On the grounds aforesaid learned counsel urged for allowing the revision petition. 12] Mr. S. Ghosh learned Addl. P.P on the other hand vehemently argued that in view of the consistent corroborative and trustworthy evidence of as many as 13 witnesses the concurrent findings of the courts below with regard to the conviction and sentence of the petitioner does not Crl. Rev. P. 816 call for any interference in this revision petition. Further argument on behalf of the prosecution is that the courts below have already shown adequate leniency with regard to sentence and in view of the nature of offence and the manner in which it was committed the petitioner does not deserve any more leniency. Mr. Ghosh learned Addl. P.P therefore urges the court for dismissing the revision petition. 13] As noted as many as 13witnesses have been examined on behalf of the prosecution. Among them Smt. Minati Debbarma a resident of Surendranagar Sidhai was examined by the trial court on 20.03.2015. She stated at the trial that about a year back at about 8 8.30 am accused convict Shyamal Sutradhar Atul Sutradhar Abhijit Sutradhar and Kartik came in her house and enquired about her son Utpal Debbarma. Her son Utpalreturned home at 3 O’clock in the afternoon. The PW then told her son that the accused persons namely Atul Abhijit Shyamal and Kartik came to the house in the morning and enquired about him. At 5 O’clock in the afternoon a red colour car came to her house and her son left home in that vehicle. The PW was of the impression that her son was going to somewhere along with his friends. The 4 accused who came to her house in the morning were also seen sitting in that vehicle. Thereafter at Crl. Rev. P. 816 about 11 pm her injured son was brought back home by the officer in charge of the Sidhai police station and she was told that accused Shyamal Atul Abhijit Nantu Jhutan and present petitioner Suman Debnath assaulted him and caused his injuries. On the following day she had taken her son to GBP hospital for treatment when he told her mother that the 6accused assaulted him with a cane stick and among them petitioner Suman Debnath “gave severe assault” to him. In her cross examination the PW denied that her son was beaten by the local people after he was caught red handed while committing theft of bicycle. 14] PW 2 did not witness the occurrence. He simply stated that he heard from others that accused Shyamal Sutradhar and Suman Debnath assaulted the informant. 15] Parimal Debbarma[PW 3] a day labourer stated at the trial that accused Shyamal Sutradhar and Abhijit Sutradhar along with some others stopped their vehicle on the road which was carrying bricks. They enquired about informant Utpal Debbarma who also used to work as a labour with the PW. Utpal was not there with them at that time. At about 11pm on that day Utpal Debbarma called the PW to his house where he found Utpal lying with injuries all over his body. On enquiry he Crl. Rev. P. 816 told the PW that Abhijit Sutradhar and Shyamal Sutradhar assaulted him. In cross examination the PW stated that injured Utpal was his cousin brother. 16] Sri Amar Debbarma also gave similar evidence. He stated in his examination in chief that on the material date accused Jhutan Das Shyamal Sutradhar Nantu Debnath and Atul Sutradhar enquired about informant Utpal Debbarma when the PW along with other labourers were transporting bricks in a truck. 17] Sri Mangal Debbarma had come to know from Utpal Debbarma day after the occurrence that he was man handled by some local people in connection with theft of a bicycle. The PW stated that Utpal did not tell him the names who had actually man handled him. 18] Sri Utpal Debbarma the injured stated at the trial that all the 6(six) accused had beaten him with lathi stick) after tying his hands with rope. They also tied one Abhijit Sutradhar with rope at the same place and started beating him. When Abhijit confessed that he had stolen the bicycle and assured to return the value of the bicycle the accused persons freed the PW and offered him cold drinks and roti. The PW stated that all the 6accused joined together Crl. Rev. P. 816 in assaulting him. He also identified them during the trial. The relevant extract of his evidence is as under: “Near about one year back one day at about 5 p.m. when I came out from my house seeing me a red colour maruti van driven by Nantu witness points towards accused Nantu Debnath at the dock) stopped beside me and enquired of me about Utpal Debbarma. When I told that I am Utpal Debbarma then Nantu informed me that Uttam Debnath owner of bricks kiln where I worked is asking me to meet him. Nantu also contacted with Uttam Debnath over mobile phone and arranged my talk with him. Uttam Debnath asked me to meet him and to come with that Maruti van. Accordingly I boarded in the maruti van. Driver took me to Manipuri Chowmuhani in a culvert at Panikata where Shyamal Sutradhar Abhijit Sutradhar Anil Sutradhar Suman Debnath and Jhutan Das witness identified the said accused at the dock by name and face) were waiting there. Nantu Debnath asked me to get down from maruti As soon as I get down all of them tied me with a rope and started assaulting me with „lathi‟ stick). Shyamal Sutradhar was asking me to return to his cycle alleging that I had stolen the same. Shyamal told me that Abhijit Sutradhartold that I had stolen bicycle of Shyamal. After assaulting me they un tied me and tied Abhijit Sutradhar with a rope and assaulted him. Abhijit Sutradhar confessed that Crl. Rev. P. 816 he had stolen the bicycle and assured to return the value of its then they un tied Abhijit also. Then Shyamal enquired of me whether I can return home. Then they offered me cold drinks „roti‟ which I refused. Then as per instruction of Suman they informed police alleging theft of bicycle by me.” In his cross examination nothing could be extracted from him in favour of the defence. The PW denied that he lodged a false case and gave false statement before the 19] Sri Binoy Paulscribed the FIR. He stated at the trial that he wrote the FIR pursuant to the request of the informant and thereafter he wrote the FIR. 20] PW 8 is a seizure witness who signed the seizure list after the weapon of offence was seized by the police in his presence from the place of 21] PW 9 is the medical officer who attended the injured informant at Mohanpur CHC on 31.03.2014 and found the following injuries on his body: Crl. Rev. P. 816 “1. Lacerated wound of 5cm X 1.5 cm X muscle depth over his left leg 3 cm below the knee 2. Abrasion 6 in numbers measuring 7CM X 2 CM over his back of chest 10 c.m. below the right spine of scapula. 3. Tenderness over left arm with restricted All the injuries were simple in nature and caused by blunt object.” The PW prepared the injury report and supported his report during trial in the court. 22] Sri Bijoy Debnath simply stated that his signature was obtained by police on a piece of paper. He identified his signature but he could not say anything about the contents of the document. 23] Sri Sanjoy Pan Tanti was produced in court. In his examination in chief he stated that he had no idea about the case. His cross examination was declined. Similarly Sri Kishore Debnath stated that his signature was obtained by police on a piece of paper and he had no knowledge about the contents of the document. His cross examination was also declined. 24] Sri Sudip Kumar Das is the investigating officer of the case. He stated that after the case was endorsed Crl. Rev. P. 816 to him for investigation he carried out the whole investigation of the case and in the course of investigation he examined the material witnesses collected the injury report seized the weapon of offence and he had also drawn up hand sketch map with separate index after visiting the crime scene and thereafter he submitted the charge sheet against the accused 25] Obviously there is no eye witness to the assault of the informant other than the informant himself. But the evidence of the informant is so consistent and trustworthy that it is quite difficult to discard his evidence with regard to the involvement of the accused persons. Careful reading of his evidence gives an impression that the PW has not made any attempt to conceal anything. He appears to be a very truthful witness who stated in his examination in chief that after assaulting him on the suspicion that he had committed theft of a bicycle the accused persons came to know from Abhijit Sutradhar that the bicycle was actually stolen by Abhijit alone and thereafter the repentant accused persons offered him cold drinks and roti and they also asked him whether he would be able to return home alone. The consistent evidence of his mother has also given strong circumstantial support to the fact that the accused persons had taken her son in their Crl. Rev. P. 816 vehicle to the place of occurrence where they had assaulted and injured him. The evidence of PW 3 who had seen the informant immediately after the occurrence and came to know from him about the involvement of the accused persons in his assault also lend strong circumstantial support prosecution case. The fact that Utpal Debbarma received injuries on the date of occurrence also stands established by the medical reportand testimony of the medical officer PW 9]. 26] There is therefore no infirmity in the impugned judgment. Resultantly the revision petition stands dismissed and the case is disposed of. Send back the LC record. Crl. Rev. P. 816

Court can award penalty along with compensation for not responding to summons: High Court of Delhi

When an accused does not respond to court summons or an undertaking which was filed and not obeyed to, the court can award penalty along with the chosen form of punishment to the accused. This was held In the case of Prahald Singh vs. State & Anr. [CRL.REV.P. 882/2018 & CRL.M.(BAIL) 1612/2018] in the High Court of Delhi by the Hon’ble Justice Subramonium Prasad. This petition was filed to challenge the order of the Additional Judge wherein compensation of Rs. 1,75,000 along with simple imprisonment for three month was awarded to him. This judgement was made in response to a check bounce case filed against him. The facts were that the respondent had lent 1 lakh rupees to the petitioner and when the loan was repaid by cheque had ‘insufficient funds’. Initially, in the year 2019, the petitioner had sought to settle the matter by agreeing to pay the said amount to the respondent by way of four installments.  In addition to this, the petitioner also undertook to pay fine to the legal Services Authority within four weeks. However, even after an extension of 6 months, the petitioner has failed to pay the same. The contention of the petitioner is that as per Section 138, of Negotiable Instruments Act, a legal notice was to be sent to his address. Even though a notice was sent, it was not received at his address and this should be enough to take away the liability from him. The lower court believed that the petitioner failed miserably to prove its defense and he was awarded compensation. In this revision appeal, the counsel for the respondent states that Section 139 of N.I Act raises a presumption in favor of the holder and to rebut this presumption, both the contentions put forth by the petitioner are inadmissible. The first contention was that the cheque was given to another man and he had given it to respondent whereas the documents prove otherwise.  Another contention was that the bank statement of the petitioner does not display the loan of Rs. 1,00,000. However there is no evidence produced by the petitioner to lead this claim. The court highlighted the point that the petitioner claims to not receiving the notice, but at the same time had received the summons and even appeared before the court when both the summons as wel as the notice was sent to the same address.  It referred to the case of C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 where it was held “A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act…”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 882 2018 & CRL.M.(BAIL) 1612 2018 CRL.M.A. 11794 2019 & CRL.M.A. 2798 2020 IN THE MATTER OF: Date of decision: 8th March 2021 PRAHALD SINGH ..... Petitioner Through Mr. Yash Karan Jain Advocate THE STATE & ANR ..... Respondents Through Ms. Kusum Dhalla APP for the State. Mr. Parikshit Ahuja Advocates with CORAM: HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This revision petition under Section 397 Cr.P.C is directed against the judgment and order dated 09.03.2018 passed by the Additional Session Judge Karkardooma Courts New Delhi in CRL. Appeal No.194 2017. The Additional Session Judge by the impugned judgment affirmed the order dated 29.06.2017 passed by the Additional Chief Metropolitan Magistrate East Karkardooma Court Delhi convicting the petitioner for an offence under Section 138 of Negotiable Instruments Act 1881and the Order on sentence dated 17.10.2017 directing the petitioner to pay a compensation of Rs.1 75 000 and in default the petitioner herein has to undergo simple imprisonment for three months. On 01.11.2019 the counsel for the petitioner on instructions from the petitioner who was present in person submitted that the petitioner is ready CRL.REV.P. 882 2018 and willing to settle the disputes with respondent No.2. It was agreed that the petitioner will make the payment of Rs.1 70 000 to respondent No.2 in four monthly instalments. The first three instalments of Rs.50 000 each were to be paid on or before 01.12.2019 01.01.2020 and 01.02.2020 respectively. The fourth and final instalment of Rs.20 000 was to be paid on or before 01.03.2020. The petitioner also undertook to deposit fine of Rs.5 000 with the Delhi High Court Legal Services Committee within four weeks. The petitioner further undertook to deposit 15% of the compensation amount with the Delhi High Court Legal Services Committee in view of the decision of Supreme Court in Damodar S.Prabhu vs. Saved Babalal H. 2010) 5 SCC 663 within four weeks thereafter. The said amount has not been paid. On 07.02.2020 the counsel for the petitioner submitted that the petitioner is willing to pay the amount provided some more time is given to him and prayed that six months time be granted and he also stated that an undertaking in this regard will be filed by him within one week. Even though time was granted the amount has not been paid. A perusal of the above orders would show that the petitioner is only using dilatory tactics to postpone the matter and is not willing to pay the amount which the petitioner had undertaken to pay vide Order dated 01.11.2019. This Court is therefore inclined to hear and dispose of the revision petition on merit. Shorn of details the facts leading to this revision petition are: The respondent No.2 instituted a complaint under Section 138 of NI Act stating that he had lent a sum of Rs.1 00 000 to the petitioner as friendly CRL.REV.P. 882 2018 loan. For the repayment of the said loan the petitioner had issued a cheque bearing No. 795471 dated 25.07.2013 drawn on State Bank of India in favour of the respondent No.2. The cheque was returned as dishonoured with the remarks “funds insufficient”. A Legal notice as contemplated under Section 138 of NI Act was sent to the petitioner on 20.08.2013 which returned back with the report "left without A complaint being C.C. No. 934 13 15 under Section 138 N.I. Act was instituted against the petitioner on 04.10.2013 in the Court of Chief Metropolitan Magistrate Karkardooma Courts address". Delhi. The petitioner took a defence that he did not take any loan of Rs.1 00 000 from the respondent No.2. He also stated that a blank cheque had been given by him to one Mahesh from whom the petitioner had taken loan. It is stated that the said Mahesh has given the cheque to the complainant which has been misused. d) Mahesh was examined as DW 2 and in his cross examination he stated that the cheque in question had never been given to him by the accused petitioner herein. The petitioner stated that he did not receive the notice under Section 138 NI Act and therefore the complaint ought to be dismissed. The learned Metropolitan Magistrate by the judgement dated 29.06.2017 held that the petitioner accused had not been able to rebut the presumption under Section 139 NI Act. The Metropolitan Magistrate noted that the petitioner accused had miserably failed to prove his defence as DW 2 Mahesh Kumar examined by him in CRL.REV.P. 882 2018 support of his defence has not supported his case. Rather DW 2 specifically stated that he had seen the cheque in question for the first time in court. The Metropolitan Magistrate also found that the Notice was sent to the address C 13 Ground Floor DLF Colony Dilshad Extension 2 Shahibabad Ghaziabad and was returned back with endorsement "house lock after repeated visits". The Metropolitan Magistrate found that the accused who was examined as DW 1 never deposed that the said address was not in his possession. The Metropolitan Magistrate noted that in his cross examination the petitioner accused has stated that he had shifted to Hari Nagar in 2012 but interestingly in the personal bond furnished by the petitioner after receiving the summons on 20.02.2014 he has mentioned his address as C 13 Ground Floor DLF Colony Dilshad Extension 2 Shahibabad Ghaziabad U.P. to which address the notice was sent. The Metropolitan Magistrate therefore held that the legal notice had been duly served on the accused petitioner herein. The petitioner was therefore held guilty of an offence under Section 138 N.I. Act. By a separate order dated 17.10.2017 the Metropolitan Magistrate sentenced the petitioner to pay a compensation of Rs. 1 75 000 in default the petitioner was to undergo SI for 3 months. Out of the compensation of Rs.1 75 000 Rs. 1 70 000 was to be paid as compensation to the complainant and Rs. 5 000 was to be deposited with State. Aggrieved by the said order the petitioner filed an appeal being CRL.REV.P. 882 2018 CRL. Appeal No.194 2017 before the Additional Session Judge Karkardooma Courts. The Additional Session Judge by the impugned judgement dismissed the Appeal. The Additional Session Judge after going through the material on record held that the petitioner has not been able to prove his defence inasmuch as Mahesh Kumar to whom the petitioner had alleged to have given the cheque stated that the cheque in question was not handed over to him by the petitioner. The Additional Session Judge relied on a judgement of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed 6 SCC 555 and held that even assuming that the legal notice was not served on the petitioner herein the service of the summons of the complaint can be treated as service of notice to the appellant petitioner herein and the accused ought to have made the payment in time as stipulated under the N.I. Act. The Additional Session Judge upheld the compensation and sentence imposed on the petitioner. It is this order which is under challenge in the present petition. 7. Mr. Yash Karan Jain learned counsel for the petitioner contends that the petitioner had not given the cheque to the complainant respondent No.2 herein and the cheque has been misused to frame him. He states that a perusal of the bank statement would show that the complainant has shown only two transaction in his bank statement the first transaction dated 27.12.2010 is for an amount of Rs.49 500 and the second transaction dated 28.01.2011 is for an amount of Rs.30 000 and the total amount comes to Rs.79 500 then how is it possible that the petitioner has given a cheque of Rs.1 00 000 to the complainant. He states that this shows that the version of the complainant respondent No.2 that a cheque was given for repayment CRL.REV.P. 882 2018 of loan is incorrect and the complainant has misused a blank cheque which came to his possession. He would also contend that the petitioner did not reside on the address to which the notice was sent. Per Contra Mr. Divyakant Lahoti learned counsel for the respondent No.2 would contend that two Courts after going through the entire records have held that the petitioner is guilty for an offence under Section 138 NI Act. Mr. Divyakant Lahoti learned counsel for the respondent No.2 has taken this Court through various documents to substantiate that the address to which the Notice was sent was the address of the petitioner. He would also states that the cheque bearing No. 795471 dated 25.07.2013 has been signed by the petitioner the cheque is in the name of the complainant and is for a sum of Rs.1 00 000 . Mr. Divyakant Lahoti learned counsel for the respondent No.2 submits that the respondent No.2 has filed his Bank Statement to substantiate his contention that a sum of Rs.1 00 000 had been given to the accused. In the Bank Statement there are three transactions which are as follows: The first transaction dated 27.12.2010 is a cheque withdrawal The second transaction dated 28.01.2011 is a cheque withdrawal for an amount of Rs.49 500 . for an amount of Rs.30 000 . The third transaction dated 18.04.2011 is a cheque transaction in favour of Prahalad for an amount of Rs.50 000 . Mr. Divyakant Lahoti learned counsel for the respondent No.2 states that out of the sum of Rs.49 500 which was withdrawn on 27.12.2010 Rs.20 000 was given to the petitioner in cash Rs.30 000 withdrawn on 28.01.2011 was also given to the petitioner in cash and a cheque for a sum CRL.REV.P. 882 2018 of Rs.50 000 was also given to the petitioner which was encashed on 18.04.2011 by the petitioner. He would therefore state that Rs.1 00 000 was given to the petitioner by the respondent No.2. Section 139 of the N.I. Act raises a presumption in favour of the holder. Section 139 of the N.I. Act reads as under: “The Negotiable Instruments Act 1881 139. Presumption in favour of holder.—It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge in whole or in part of any debt or other 10. No doubt the presumption is rebuttable. To rebut the presumption the petitioner has raised two fold contentions. The first contention he has raised is that he gave a cheque to one Mahesh Kumar and that the said Mahesh Kumar has misused the cheque by giving it to the complainant who filled the cheque. The contention that the cheque has been given to Mahesh Kumar who was examined as DW 2 is not acceptable as he deposed against the petitioner. Mahesh Kumar in his cross examination has stated as “It is correct that the cheque in question had never been handed over to me by Sh. Prahlad Singh” The first contention therefore cannot be accepted. 11. The second contention raised by the petitioner to rebut the presumption is that the bank statement given by the complainant does not substantiate the case of the complainant that Rs.1 00 000 has been given by him to the accused as loan. A perusal of the judgements of two courts below CRL.REV.P. 882 2018 does not indicate that this issue was ever raised by the petitioner before the subordinate Courts. Mr. Divyakant Lahoti learned counsel for the respondent No.2 complainant states that the onus is on the petitioner to rebut the presumption by leading evidence. The fact that the cheque has been signed by the petitioner raises a presumption unless the contrary is proved that the holder of the cheque has received the cheque for the discharge in whole or in part of a debt or other liability. Mr. Divyakant Lahoti states that the petitioner has not led any evidence to rebut the same. This Court is inclined to accept the contention of Mr. Divyakant Lahoti learned counsel for the respondent No.2. 12. The submission of the petitioner is that he did not receive Rs.1 00 000 and the Bank Statement shows that only Rs.79 500 has been received. Nothing has been shown by the petitioner to substantiate that Rs.79 500 has been repaid. The cheque has been signed by the petitioner and there is nothing to show that the sum of Rs.79 500 has been repaid and it cannot be said that the cheque was not given to the respondent No.2 to repay the loan amount. The presumption under Section 139 cannot be said to have been rebutted. 13. The Notice under Section 138 NI Act was sent to C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad. In the petition it is stated that the petitioner is residing at 48A DA Block Type III Hari Nagar. The Metropolitan Magistrate found that the address given by the petitioner in his personal bond shows that the address of the petitioner is C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad to which the Notice was sent. What is interesting is that even in the vakalatnama which was filed before the Metropolitan Magistrate CRL.REV.P. 882 2018 Annexure R2 4) the address of the petitioner is mentioned as C 13 Ground Floor DLF Colony Dilshad Garden Extension 2 Sahibabad Ghaziabad. As noted by the Additional Session Judge the petitioner has received the summons and he appeared in the Court in response to summons. 14. The Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed 2007) 6 SCC 555 observed as under: “17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post can within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summonsand therefore the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act cannot obviously contend that there was no proper service of notice as required under Section 138 by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Therefore the finding of the Court below that the Notice has been sent to the correct address cannot be found fault with. 15. The Supreme Court has time and again examined the scope of Section 397 401 of Cr.P.C and the ground for exercising the revisional jurisdiction by the High Courts. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri 2 SCC 452 the Supreme Court observed as under: “5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned CRL.REV.P. 882 2018 counsel for the parties we have no hesitation to come to the conclusion that in the case in hand the High Court has 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 otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge while confirming the conviction of the respondent. In this view of the matter the impugned judgment of the High Court is wholly unsustainable in law and we accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.” Similarly in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke 2015) 3 SCC 123 the Supreme Court observed as under: “14. In the case before us the learned Magistrate went through the entire records of the case not limiting to the report filed by CRL.REV.P. 882 2018 the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non consideration of any relevant material or there is palpable misreading of records the Revisional Court is not justified in setting aside the order merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously the courts may not interfere with decision in exercise of their revisional jurisdiction.” 17. There is no perversity in the orders of the Courts below warranting interference by this Court under Section 397 401 Cr.P.C. 18. Power to grant compensation has been provided under Section 357(3) Cr.P.C. Section 357(3) Cr.P.C reads as under: “The Code Of Criminal Procedure 1973 Section 357 …..(3) When a Court imposes a sentence of which fine does not form a part the Court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.” CRL.REV.P. 882 2018 The Supreme Court in Kumaran v. State of Kerala 7 SCC 471 observed as under: “24. With the Code of 1973 came an interesting change. Sub section was added to Section 357 which was an entirely new provision making it clear that the court may when passing judgment order the accused to pay by way of compensation such amount as may be specified in the order to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. This is provided that the court imposes a sentence of which fine does not form a part. Another important change was made in Section 421(1). The proviso to the said sub section was altered because the 41st Law Commission Report amendments to the old Section 386 stated after noticing the Bombay High Court judgment in Digambar case59 Bom 350 : AIR 1935 Bom 160 : 1935 Cri LJ 1034] as follows: “28.10. Fine recoverable when compensation has been ordered.—We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not in our opinion be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under Section 545 has been passed for payment of expenses or compensation out of the fine recovery of the fine should be pursued and in such cases the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to Section 386(1) should make this clear.” CRL.REV.P. 882 2018 In view of the above this Court does not find any infirmity in the amount of compensation imposed on the petitioner. The petitioner has abused the indulgence granted by this Court. On 01.11.2019 the petitioner undertook to pay the amount of compensation in 4 instalments. He has gone back on the undertaking given to this Court which amounts to contempt. The petitioner is therefore not entitled to any indulgence from this Court. 21. Accordingly the revision petition is dismissed along with the pending SUBRAMONIUM PRASAD J. applications. MARCH 08 2021 CRL.REV.P. 882 2018

Appellant had not requested for any ‘information’ as defined under section 2(f) of the RTI Act: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Suraj Joshi v CPIO, SEBI, Mumbai (Appeal No. 4320 of 2021) dealt with an issue in connection with Section 2 (f) and Section 7 (9) of the Right to Information Act, 2005. The appellant, Mr Suraj Joshi had filed an application via RTI MIS Portal on the 19th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 9th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 9th of June, 2021, on his application, the appellate decided to file an appeal on the 15th of June, 2021. In his application, the appellate was seeking the following information: “7. Along with SEBI are there any other Government agencies/Legal force looking after this Case/Complaints, if yes please provide the details of the same.” The respondent, in response to query number 2, informed that the information sought is maintained in separate individual files, placed at multiple locations across SEBI and collating the same for providing response to query would disproportionately divert the resources of the public authority. Hence the same is exempt under section 7(9) of the RTI Act, 2005. The appellant, in his appeal, inter alia, submitted that it was deemed that the information sought by him was only in respect to the information available with SEBI head office. The appellant filed the appeal on the grounds of that the information was refused. . On perusal of the appeal, it appears that the appellant is not satisfied with the reply to query numbers 2, 7 and 9. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. Mr Baiwar also made reference in the matter of Shri Kunal vs. CPIO, Syndicate Bank (Order dated October 06, 2015). In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43221 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43221 Suraj Joshi CPIO SEBI Mumbai The appellant had filed an application dated May 19 2021under the Right to Information Act 2005 Total number of complaints received each year b) Mode of receiving complaints stated in point 2aboveThe respondent in response to query number 2 informed that the information sought is maintained in separate individual files placed at multiple locations across SEBI and collating the same for providing response to query would disproportionately divert the resources of the public authority. Hence the same is exempt under section 7(9) of the RTI Act 2005. The appellant in his appeal inter alia submitted that Appeal No. 43221 it was deemed that the information sought by him was only in respect to the information available with SEBI head office. I note that the appellant had requested for number of complaints received each year since 2015 against Maitreya Plotters and Structures Pvt. Ltd. It is understood that the information sought by the appellant has to be collected and collated from a large amount of data information maintained in separate individual files which are placed at multiple locations across SEBI. Further it is understood that providing the said information would require the respondent to analyse the dataand categorise the data as requested in the application. Considering the same the respondent has rightly observed that providing the information will disproportionately divert the resources of SEBI and claimed exemption under section 7of the RTI Act. In this context I note that the Hon ble CIC in the matter of Shri Praveen Agarwal vs. SEBIhad held that: “It is true that given the volume and the complexity of the information requested by the appellant it would be impossible to locate and collate it without substantial research effort. A public authority cannot be obliged to engage in it for the benefit of an applicant who may not be the only and the last such applicant. Many more would want to have this privilege which doubtless would lessen the applicant s research burden while increasing it for the public authority. Considering the fact that the information requested is unarguably in the public domain and that its range and volume is such that it would attract provisions of Section 7(9) of the Act it is not possible to authorize its disclosure in the form in which the appellant had requested.” In view of the aforesaid I find no deficiency in the respondent s response. I note that the appellant in his appeal inter alia submitted that the information was deemed to have been sought with respect to the information available with SEBI head office. On plain reading of the application dated May 19 2021 the same cannot be inferred. I also note that this clarification has been provided by the appellant in his appeal. I am of the opinion that the same does not warrant consideration at this stage. 7. Query number 7 The appellant vide query number 7 sought the following information: “7. Along with SEBI are there any other Government agencies Legal force looking after this Case Complaints if yes please provide the details of the same.” The respondent in response to query number 7 informed that the query is in the nature of inquiry inquisition and hence cannot be construed as “information” as defined under section 2(f) of the RTI Act 2005. Appeal No. 43221 9. On a perusal of the instant query of the appellant s application I agree with the observation of the respondent that the same is in the nature of inquiry inquisition. Further I find that the appellant had not requested for any information as defined under section 2(f) of the RTI Act. Notwithstanding the same I note that the respondent in response to query number 1informed that the Hon’ble Nashik District Court has considered the money raised by the company and its directors as deposits under the Maharashtra Protection of Interests of DepositorsAct 1999 and has further directed to form a committee to repay the investors’ money. I find that the respondent has already provided the information available with him. In view of the same I am of the opinion that no interference of this forum is warranted at this stage. 10. Query number 9 The appellant vide query number 9 sought the following information 9. On Dated 22 05 2017 a complaint letter against this company along with necessary attachments was sent to SEBI BKC office Bandra vide speed post no EM688756650INDate when SEBI registered the above Complaint b) Name of the officer to whom the Complaint was allotted c) Current status of the Complaint d) Till Date has been any communication with the complainant with regards to the above complaint lodged If Yes Please provide the details of the same e) Is there any other documentation available in this regards with SEBI If yes please provide the details of the same. 11. The respondent in response to query number 9 observed that the requested information is exempt from disclosure in terms of Section 8(1)(g) and 8(1)(j) of the RTI Act as the same does not pertain to the appellant and the same relates to personal information with respect to third parties the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the individual and may also endanger the life or physical safety of the person. The appellant in his appeal submitted that the requested information pertains to his father and that the same may be provided to him. 12. On perusal of the queries I find that the appellant sought information which may relate to personal information with respect to third party and the disclosure has no relationship to any public activity or interest. In my view the exemption from disclosure under Section 8(g) andof the RTI Act is not nullified by the fact that the information seeker happens to be related to the complainant. Further it is Appeal No. 43221 observed that the appellant in his application has neither made any submission nor provided any proof to that effect. The appellant has made such submission for the first time in this appeal. Further no documents have been submitted for substantiating the claim. In this context I note that similar observations were made by the Hon’ble CIC in the matter of Shri Kunal vs. CPIO Syndicate Bank (Order dated October 06 2015). In view of the same I see no ground to fault the decision of the respondent. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 14 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

It is Universal application of human fallibility behind granting power to review judgments: Supreme Court of India

The basic philosophy inherent in granting the power to the Supreme Court to review its judgment under Article 137 is the universal acceptance of human fallibility. The Supreme Court presided over by J. A. Bhushan & J. I. Malhotra allowing a review petition laid down this ratio in the case of Rajendra Khare Vs. Swaati Nirkhi & Ors., [Review Petition (Crl.) No. 671 of 2018]. The brief facts of this case are that the Supreme Court allowed a Transfer Petition that transferred the Criminal case from the Metropolitan Magistrate Court at New Delhi to Magistrate Court at Allahabad. The person who had filed the FIR was aggrieved by the orders passed in the Transfer Petition and so he filed a Miscellaneous Application in this court which was dismissed he later filed the Review Petition. The Review-petitioner was of the opinion that he was not impleaded in the in the transfer petition so as to deny him the right to oppose inn the transfer petition. The review petition was opposed on the ground that all the issues raised have been dealt with in the Miscellaneous Application and that the review petition was not maintainable. The Court was of the opinion that merely because the Petitioner filed a Miscellaneous Application, he was not precluded from filing the present review petition. The Court further observed that, “The rectification of an order emanates from the fundamental principles that justice is above all. In the Constitution, substantive power to rectify or review the order by the Supreme Court has been specifically provided under Article 137 as noted above. The basic philosophy inherent in granting the power to the Supreme Court to review its judgment under Article 137 is the universal acceptance of human fallibility.”

IN THE CRIMINAL APPELLATE JURISDICTION REVIEW PETITIONNO. 671 OF 2018 TRANSFER PETITIONNO.262 OF 2018 …PETITIONER(S SWAATI NIRKHI AND ORS. Contempt Petition(C)No.1233 2019 in T.P.(Crl.)No.262 2018 JUDGMENT ASHOK BHUSHAN J This review petition has been filed praying that the Order dated 18.05.2018 passed in Transfer PetitionNo.262 2018 under Section 406 of Cr.P.C seeking transfer of trial of Criminal Case No.34817. In the transfer petition following were the three respondents who were impleaded: State823001 Jugal Kishore Yadav S o Sh Puna Prasad Yadav R o 13 137 Sector 16 Rohini Delhi 110 089. Transfer petition was taken by this Court and following order was passed on 18.05.2018: “Heard learned counsel for the Without expressing any opinion on merits we direct that proceedings in Crl. Case No.0003483 of 2017 titled “State Vs. Swati Nirkhi & Ors.” on the file of Metropolitan Magistrate 461 North West Rohini Courts New Delhi shall stand transferred to the Court of Metropolitan Magistrate at Allahabad Uttar Pradesh for hearing and disposal in accordance with law. Records shall be sent to the transferee Court forthwith It will be open to the parties to seek clubbing of all the matters if any pending between them in accordance with The Registry to transmit a copy of this order to the courts concerned Parties to appear before the transferee court on Monday 9th July 2018. The transfer petition is accordingly allowed with the above Since this order being passed ex parte it will be open to the respondents to approach this Court if The review petitioner who had filed the F.I.R No.39 2016 was not made one of the respondents in the transfer petition. The review petitioner after order dated 18.05.2018 filed M.A.No.1589 of 2018 praying for recall of the Order dated 18.05.2018 passed by this Court in Transfer Petition No. 6718 praying for review of orders dated 18.05.2018 and 05.06.2018. In this review petition order was passed on 24.10.2018 allowing the application for open court hearing and notice was issued by this Court. This Court passed following order on 24.10.2018: “Application for Open Court hearing is allowed. Delay condoned. After issuance of notice reply has been filed to the review petition by respondent Nos. 1 to 3 as well as by respondent No.5 Jugal Kishore Yadav A short affidavit on behalf of respondent No. 3 dated 11.01.2021 as well as an affidavit on behalf of review petitioner dated 19.01.2021 has also been We have heard Shri Rajendra Khare the review petitioner appearing in person. Shri Rahul Shyam Bhandari learned counsel has appeared for respondent Nos.1 2 and 3 and Shri Kaustubh Shukla learned counsel has appeared for respondent No.5. The petitioner appearing in person submits that review petitioner who was informant of the First Information Report was not made party to the transfer petition filed under Section 406 Cr.P.C. He submits that the review petitioner was not impleaded in the transfer petition so as to deny him the right to oppose the transfer petition. It is submitted that the review petition was taken by this Court on 18.05.2018 for preliminary hearing and without issuing any notice review petition was allowed. It is submitted that as per Order XXXIX of the Supreme Court Rules 2013 after preliminary hearing of the transfer petition notice is required to be issued which notice has not been issued in the present transfer petition and on the first day of hearing the transfer petition was allowed. The Miscellaneous Application was also summarily dismissed without giving an opportunity of hearing to the review petitioner to file a counter affidavit. The orders passed by this Court dated 18.05.2018 as well as 05.06.2018 were passed violating the principles of natural justice. It is further submitted that there were no good grounds to transfer the Criminal Case pending in the Rohini Court It is submitted that out of 24 witnesses which are cited 21 witnesses belong to Delhi and transfer of criminal trial will cause immense prejudice. It is further submitted that even after order of this Court dated 18.05.2018 in which this Court directed parties to appear before the transferee court on 09.07.2018 the respondents did not appear before the Court. Review petitioner submits that there is an error apparent on the face of the record in the judgment dated 18.05.2018 which deserves to be reviewed by this Court and the transfer petition be heard on merits after giving an opportunity to review petitioner also. Shri Rahul Shyam Bhandari learned counsel appearing for respondent Nos. 1 to 3 contends that no ground have been made out to review the judgment dated 18.05.2018 Referring to reply filed on behalf of respondent Nos.1 to 3 learned counsel submits that in fact in the Registry when the transfer petition was submitted the review petitioner was impleaded as respondent No.2 but on objection raised by the Registry the name of respondent No.2 was deleted from the transfer petition and there was no attempt on part of transfer petitioners not to implead the review petitioner as one of the respondents. It was only due to objection by Registry the name of respondent No.2 was deleted. It is further submitted that this Court in its order dated 18.05.2018 had granted liberty to file an application since the order was being passed ex parte and review petitioner has exhausted his liberty by filing M.A. No.1589 of 2018 which was rejected on 05.06.2018. It is submitted that all grounds which are now sought to be raised in the review petition were already taken in the M.A. No.1589 of 2018. This Court having rejected the M.A. there is no occasion to consider the review petition and the review petition being not maintainable deserves to be rejected. Learned counsel for the respondent No.5 opposing the review petition has also made similar submissions as raised by learned counsel for the respondent Nos. 1 to 3 We have considered the submissions of the parties and have perused the records. There is no dispute that the criminal case which has been sought to be transferred in T.P. No.262 of 2018 was criminal case which was registered on First Information Report filed by review petitioner in which FIR after investigation charge sheet has been filed and accused were summoned. It is also a fact that in the Transfer Petition No.262 of 2018 the review petitioner was not a party. The learned counsel for the respondent Nos. 1 to 3 has stated in his reply affidavit that initially when petition was filed in the Registry review petitioner was respondent No.2 but on objection raised by the Registry the name of respondent No.2 was deleted from the transfer petition. We have no reason to doubt the above statement on behalf of the counsel for the respondent Nos.1 to 3 but the fact remains that Order dated 18.05.2018 was passed in the transfer petition where the review petitioner was not a party respondent. It is also not disputed that M.A. No.15818 filed by review petitioner came to be dismissed by order as noted above. The review petition which has been filed by the review petitioner to review the judgment is referable to Article 137 of the Constitution read with Order XLVII of Supreme Court Rules 2013. Article 137 of the Constitution provides as follows: “137. Review of judgments or orders by the Supreme Court. Subject to the provisions of any law made by Parliament or any rules made under article 145 the Supreme Court shall have power to review any judgment pronounced or order made by it.” The Rules have been framed under Article 145 of the Constitution namely “The Supreme Court Rules 2013” in which Order XLVII deals with the review. Order XLVII Rule 1 provides: 1. The Court may review its judgment or order but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII rule 1 of the Code and in a criminal proceeding except on the ground of an error apparent on the face of the record The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules The jurisdiction of this Court to review is thus specifically provided in the Constitution as well as Rules framed under Article 145. This Court while considering the review jurisdiction of Supreme Court has noted and considered the scope and ambit of the review jurisdiction in Vikram Singh alias Vicky Walia and Anr Vs. State of Punjab and Anr. 8 SCC 518 in paragraph 23 of which judgment following was laid down: “23. In view of the above it is clear that scope ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding review applications cannot be entertained except on the ground of error apparent on the face of the record Further the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of Learned counsel for the respondent Nos. 1 to 3 has also relied on a Three Judge Bench judgment of this Court in Mukesh Vs. State (2018) 8 SCC 149 where this Court has also elaborately considered the scope and ambit of the review jurisdiction of this Court In paragraphs 5 6 and 7 following was laid down by this “5. The power of review of the Supreme Court as envisaged under Article 137 of the Constitution is no doubt wider than review jurisdiction conferred by other statutes on the Court. Article 137 empowers the Supreme Court to review any judgment pronounced or made subject of course to the provisions of any law made by Parliament or any rule made under Article 145 of the Constitution 6. An application to review a judgment is not to be lightly entertained and this Court could exercise its review jurisdiction only when grounds are made out as provided in Order XLVII Rule 1 of the Supreme Court Rules 2013 framed under Article 145 of the Constitution of India. This Court in Sow Chandra Kante v. Sk. Habib1 SCC 674 speaking through V.R. Krishna Iyer J. on review has stated the following in para 1 SCC p. 675 “1. … A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” 7. As per rule review in a criminal proceeding is permissible only on the ground of error apparent on the face of the record This Court in P.N. Eswara Iyer v. Supreme Court of India4 SCC 680] while examining the review jurisdiction of this Court vis à vis criminal and civil proceedings had made the following observations in paras 34 and 35:on its face affords a wider set of grounds for review for orders in civil proceedings but limits the vis à vis criminal proceedings to “errors apparent on the face of the record”. If at all the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So it is reasonable to assume that the Framers of the Rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the “deceased” shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the court helpless to review and set aside the sentence of hanging We think not The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover the dynamics of interpretation depend on the demand of the context and the lexical limits of the test Here “record” means any material which is already on record or may with the permission of the court be brought on record. If justice summons the Judges to allow a vital material in it becomes part of the record and if apparent error is 35. The purpose is plain the interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings Even the difference in phraseology in the Rulemust therefore be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression “record” is read to mean in its semantic sweep any material even later brought on record with the leave of the court it will embrace subsequent events new light and other grounds which we find in Order 47 Rule 1 CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the emphasis in original)” The ratio of the above judgments is that review in a criminal proceeding is permissible only on the ground of error apparent on face of record. The submission which is pressed by the learned counsel for the respondent Nos.1 to 3 is that in view of the fact that M.A. No.1589 of 2018 was rejected by this Court the review petition is not maintainable. The M.A. which was rejected was an application to recall the judgment. Grounds for recall of a judgment and grounds to review the judgment can be different. Review is a proceeding which exists by virtue of the Statute. The M.A. which was rejected was not an application to review under Article 137 as well as Order XLVII Rule 1 thus by rejection of M.A. it cannot be said that review petition filed by the review petitioner is not maintainable. The M.A. which was filed by the review petitioner and was rejected by this Court on 05.06.2018 by order “No further order is called for” can in no manner take away the right of the review petitioner to file review under Order XLVII Rule 1 of the Supreme Court Rules 2013. This Court with regard to filing of applications styled as application for clarification modification or recall of the judgment has observed that in substance those applications are for review and they should not be entertained and the applicants be given leave to file a review applications which may be dealt with as per the Rules of the Court. This Court in Delhi Administration vs. Gurdip Singh Uban and Ors. 7 SCC 296 in paragraph 18 made the following observation “18. We therefore agree with the learned Solicitor General that the Court should not permit hearing of such an application for “clarification” “modification” or “recall” if the application is in substance one for review In that event the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers.” We thus are of the considered opinion that by mere rejection of M.A. filed by the review petitioner the review petitioner cannot be precluded from filing the present review petition. Review petition is thus fully maintainable and the argument of the respondent that review petition is not maintainable cannot be considered Further submission of the counsel for the respondent that all grounds which have been taken in the review petition were earlier taken in M.A. and due to rejection of M.A they cannot be re agitated cannot be acceded to. The order passed in M.A. does not indicate that any of the issues which were raised were considered and decided by this Court and further the review being statutory proceedings cannot be considered on the specious plea raised by the respondents. The rectification of an order emanates from the fundamental principles that justice is above all. In the Constitution substantive power to rectify or review the order by the Supreme Court has been specifically provided under Article 137 as noted above. The basic philosophy inherent in granting the power to the Supreme Court to review its judgment under Article 137 is the universal acceptance of human fallibility. A perusal of the order dated 18.05.2018 in the transfer petition indicates that the order was passed on the preliminary hearing of the transfer petition and before passing the order no notice was issued under Order XXXIX Rule 2 of the Supreme Court Rules 2013 which is to the following effect: Applications For Transfer Of Criminal Proceeding Under Section 406 Of The Criminal Procedure Code 1973 And Section 11 Of The Terrorist Affected Areas 1 SCC 278. In the above case this Court convicted the petitioner under Section 193 Indian Penal Code. This Court recalled and set aside the said order after noticing that the procedure which was required to be followed for conviction was not followed. paragraphs 3 and 4 of the judgment the submissions were noticed and this Court after coming to the conclusion that error was committed by not following the procedure set aside the order convicting the petitioner. In paragraphs 12 and 15 following was laid down: “12. This Court has always adopted this procedure whenever it is noticed that proceedings before it have been tampered with by production of forged or false documents or any statement has been found to be false. We have not been able to appreciate as to why this procedure was given a go by in the present case. Maybe the provisions of Sections 195 and 340 CrPC were not brought to the notice of the learned Division Bench 15. To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. We therefore unhesitatingly set aside the conviction of the petitioner for the offence under Section 193 IPC. …” We having found that there was error apparent in the order dated 18.05.2018 the said order has to be corrected. We thus allow the review petition and recall the order dated 18.05.2018 consequently the Transfer Petition No.262 of 2018 is revived. The review petitioner is impleaded as respondent No.4 in the transfer petition. One week’s time is allowed to respondent No.4 and other respondents to file counter affidavit to the transfer petition and one week for filing rejoinder if any. List the transfer petition on 12.02.2021 for hearing The contempt petition stands closed SECTION XVI A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS R.P.(Crl.) No. 671 2018 in T.P.(Crl.) No. 262 2018 RAJENDRA KHARE Petitioner(s VERSUS SWAATI NIRKHI & ORS. Respondent(s IA No. 124163 2020 APPLICATION FOR ADJOURNMENT and IA No 91741 2019 DISCHARGE OF ADVOCATE ON RECORD and IA No. 97555 2020 EARLY HEARING APPLICATION and IA No. 91739 2019 PERMISSION TO APPEAR AND ARGUE IN PERSON) CONMT.PET.(C) No. 1233 2019 in T.P.(Crl.) No. 262 2018(RENU KAPOOR ASTT. REGISTRAR cum PS BRANCH OFFICER Signed reportable judgment is placed on the file

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

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

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

Accused can be granted bail if prosecution failed to prove ‘grave suspicion’: High Court of Delhi

A prima facie case can only be made out when grave suspicion is proved on the part of the accused. This was decided in the case of State (Nct Of Delhi) vs. Jiwan Kant Jain And Anr [CRL.REV.P. 448/2018] in the High Court Of Delhi by Single Bench Consisting Of Hon’ble Justice Subramonium Prasad. The facts of the case are that an FIR complaint was filed by the prosecuterix. In the FIR, it was stated that she had been working in two companies belonging to the accused/respondent since six months prior to the lodging the complaint  It is stated that the accused made her the CEO and later partner in one of the said companies. Also, since there was no separate place for work, work related meetings and talks regarding work were held at the home of the accused. It is alleged in the complaint that one day, the accused called her home, he mixed some intoxicant in her cold drink because of which she went into a semi-conscious state and respondent raped her four times. The respondent told her that he wanted to marry her and after that incident the respondent made her his partner and told her that he would gradually pay her salary. that if she persisted with her demand of money he would viral her video, which he had made. Later after some resistance, she escaped the place and filed a complaint in the police station. The lower court Judge found that there is discrepancy even in the narration of facts by the prosecutrix and dismissed the petition and so, this appeal was made. The counsel for the state contended that the Trial Court has erred in examining the plea of alibi evidence, without any cross examination and has discharged the accused on the basis of different cell tower locations of the accused and the prosecutrix during the relevant time. He contends that even if proved, it will merely show that the accused and the prosecutrix did not make a call at that time. It was submitted that as per the evidences and materials placed on record before the Court including the FIR and statement of the prosecutrix under Section 164 Cr.P.C, a prima facie case has been made out against the accused. This court observed that the scope and ambit of Section 227 Cr.P.C has been discussed in a number of judgments. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Supreme Court laid down the following principle: “That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.” The court observed that A reading of the above mentioned judgments would show that while framing a charge the Court has the power weigh the evidence for finding out whether or not a prima facie case against the accused has been made out and after analyzing the materials before it and if two views are possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified in discharging the accused in exercising its jurisdiction under Section 227 Cr.P.C. The court therefore made decision in favor of the accused saying ”The learned Additional Session Judge by the judgment impugned herein has considered all the material before him while discharging the accused. This Court does not find any infirmity in the order impugned which calls for interference.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 448 2018 Date of decision: 26th FEBRUARY 2021 IN THE MATTER OF: STATEJIWAN KANT JAIN AND ANR Through Mr. Avi Singh Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. Through Mr. Aditya Jain Advocate ..... Petitioner ..... Respondents This revision petition filed under Section 397 401 Cr.P.C is directed against the order dated 03.01.2018 passed by the Additional Sessions Judge Special Fast Track Court South District Saket Courts New Delhi in Case No.342 2017 where by the Additional Session Judge has discharged the accused from the charges under Sections 376 328 354A 323 506 and FIR No.23 2016 dated 05.01.2016 was registered at Police Station Safdarjung Enclave for offences under Sections 376 328 354A 323 506 509 IPC. and 509 IPC. In the FIR the prosecutrix stated that she had been working in two companies Faison World Hauz Khas and Perfect Organiser belonging to the accused respondent No.1 since six months prior to the lodging the CRL.REV.P. 448 2018 complaint. It is stated that the respondent No.1 told the prosecutrix that he had divorced his wife and was staying separately and needed a capable woman to handle his work. It is stated by the prosecutrix that the accused made her the CEO and later partner in one of the said companies. The prosecutrix states that since there was no separate place for work work related meetings and talks regarding work were held at the home of the accused respondent No.1. It is alleged in the complaint that one day the accused called her home he mixed some intoxicant in her cold drink because of which she went into a semi conscious state and respondent No.1 raped her four times. It is stated that the prosecutrix got up in the morning and started crying. The respondent No.1 told her that he liked her and wanted to marry her. It is stated that after that incident the respondent No.1 made her his partner and told her that he would gradually pay her salary. It is stated that the respondent No.1 started harassing the prosecutrix for salary and stopped paying her salary and removed her from the job. It is stated that when the prosecutrix questioned the action of respondent No.1 he told her that due to financial constraints he was terminating their partnership and that she would be working with one Mr. Batra who would pay her salary as well as profit. It is stated that when the prosecutrix asked for her dues the respondent No.1 refused to pay the same. The prosecutrix gave him a call and asked the respondent No.1 for a meeting. It is alleged that the respondent No.1 called her to his office and gave her one month s salary and that too in two parts half was paid in cash and the other half was by way of cheque which was issued in a wrong name. It is alleged that the prosecutrix protested. It is alleged that the respondent No.1 told her to come to Safdarjung Club where he would make another cheque with correct name. It CRL.REV.P. 448 2018 is alleged that the prosecutrix went to Safdarjung to collect her salary. It is stated that respondent No.1 came there with the other accused respondent No.2 who was working in the office of the respondent No.1 and her husband. It is alleged that the respondent No.1 told the prosecutrix that if she persisted with her demand of money he would viral her video which he had made. It is alleged that out of anger the prosecutrix went to the parking area. It is alleged that the respondent No.1 followed her and also threatened her. It is alleged that the respondent No.2 and her husband Prakash also came to the parking with the respondent No.1 and when they saw that the prosecutrix was alone they started quarrelling with her. It is stated that one Heena friend of the prosecutrix) had accompanied the prosecutrix and was sitting in the car and was waiting for her to return. It is stated that the respondent No.2 abused the prosecutrix and the respondent No.1 caught hold of her and tried to touch her inappropriately. It is also alleged that the respondent No.1 also gave a blow on her head with watch kada which he was wearing. It is stated that the prosecutrix sat in the car and locked herself and as she was trying to leave in her car all three of them attempted to follow her. She managed to escape in her car. On receiving the complaint the prosecutrix was sent to Safdarjung Hospital for medical examination. On the complaint of the prosecutrix FIR 05.01.2016 376 328 354a 323 506 509 IPC was registered against the accused persons. On the very same day the statement of the prosecutrix under Section 164 Cr.P.C was recorded. The records indicate that during the investigation the IO obtained the CCTV footage from the Safdarjung Club. The Material on record indicates that on 24.02.2016 the prosecutrix visited the Police Station CRL.REV.P. 448 2018 and gave an affidavit stating that the prosecutrix and the accused respondent No.1 have amicably settled the matter and the complaint was lodged due to some misunderstanding. However the prosecutrix has gone back on her statement during the course of the hearing of the anticipatory bail. Charge sheet was filed 20.03.2017. Supplementary Charge sheet was filed on 11.07.2017. On 03.01.2018 the Additional Session Judge while passing the order on charge discharged the accused persons. The learned Additional Session found that a) prosecutrix has not mentioned any specific date or month of the incident in her complaint dated 04.01.2016. Although In her statement under Section 164 Cr.P.C she has stated that the incident had taken place in September 2015 two three days after the birthday of accused respondent No.1. The learned Additional Session Judge has come to a conclusion that the evidence which has been placed on record by the prosecution is to be connected with accused respondent No.1 indicated that the date of birth of the accused is 25.09.1950. The Additional Session Judge found that the call details and the location of the mobile numbers of the accused and the mobile phone numbers of the prosecutrix showed different locations and they did not match with the alleged case of the incident. b) The prosecutrix has not reported the matter immediately after the incident to the police. The learned Additional Session Judge held that though it is alleged that the accused had promised to marry the prosecutrix and had also threatened the prosecutrix that CRL.REV.P. 448 2018 he would make her video viral on internet but there was a age difference of nearly 40 years between the accused and the prosecutrix. The Additional Session Judge noted prosecutrix is a mature and well educated woman and not an uneducated woman who is disconnected from the ways of the world. The learned Additional Session Judge noted that at no point of time after the alleged incident did the prosecutrix call upon the accused to marry her or to ensure that he kept his promise of marriage. The learned Additional Session Judge held that a bald plea by prosecutrix that accused had promised to marry her does not inspire any confidence. c) The Additional Session Judge took note of the fact that the prosecutrix has given contradictory versions in her complaint and her statement under Section 164 Cr.P.C regarding the alleged threat of making her video viral. The Additional Session noted that in her complaint to the police the prosecutrix has stated that accused threatened her about making her video viral on 04.01.2016 when she went to meet him at Safdarjung Club for talks regarding full and final settlement of her dues. In her statement under Section 164 Cr.P.C the prosecutrix has stated that accused respondent No.1 threatened her on the morning of the incident. d) The Additional Session Judge also found that the allegation of the prosecutrix that accused respondent No.1 had issued her a cheque of Rs. 35 000 in wrong name is also false because it has been verified that the cheque had been duly encashed by the prosecutrix. CRL.REV.P. 448 2018 e) The Additional Session Judge found that the story of the prosecutrix that when she went to Safdarjung Club on 04.01.2016 to talk to accused regarding full and final settlement of her dues later that the respondent No.1 along with co accused Dimpal respondent No.2 and Prakash assaulted her in the parking of Safdarjung Club is not correct because the CCTV footage of the area obtained by the IO does not substantiate the allegation of the f) The learned Additional Session Judge found that the mobile phone of the accused respondent No.1 was seized by the IO during the course of investigation but no obscene content or video of the prosecutrix was found in data retrieved from the mobile phone. g) The Additional Session Judge also took note of the fact that the prosecutrix had herself came to the Police Station and gave an application stating that she had resolved the dispute with the accused respondent No.1. The Additional Session Judge observed that even though the prosecutrix claimed that the said affidavit was signed by her under threat from the accused respondent No.1 no complaint has been filed by the prosecutrix regarding the threat. h) It has been found that the medical report of accused respondent No.1 shows that after being subjected to scientific examination and diagnosis he was found to be suffering from Artereogenic Vascular Impotence. The Additional Session Judge has found that though the MLC conducted by doctor of Safdarjung Hospital contradicts the said report the information given to the counsel for accused CRL.REV.P. 448 2018 pursuant to query made by accused under Right to Information Act reveals that no test for determining potency of the person accused of rape has been carried out in the department of forensic medicine. The learned Additional Session Judge therefore held that the accused respondent No.1 was not subjected to any scientific test by the doctors of Safdarjung Hospital. i) The Additional Session Judge found that there is discrepancy even in the narration of facts by the prosecutrix regarding her visit to Safdarjung Club. In the complaint it is stated that the prosecutrix escaped in her car with her friend Heena and gave a call to her brother as well as other family friends and then came to wait outside Safdarjung Club from where her brother and some other family members came there and took her to police station. Whereas in her statement under Section 164 Cr.P.C the prosecutrix has stated that when she left in the car with her friend Heena accused were waiting for her and they followed her and so she drove her car faraway so that they could not follow her and thereafter she parked her car and called all her relatives uncle mother and brother. The Additional Session Judge held that despite this contradiction the factum of quarrel and prosecutrix leaving the parking of Safdarjung Club on 04.01.2016 in haste to dodge off accused persons is disproved by the CCTV footage obtained by the IO. j) The Additional Session Judge therefore came to a conclusion that no case is made out against the accused respondent No.1 herein and accordingly the accused respondent No.1 was discharged of offences punishable under Sections CRL.REV.P. 448 2018 376 328 354 354A 323 506 509 IPC. The accused respondent No.2 herein was also discharged by the same order on the ground that she could not be convicted only on the basis of the allegations made by the prosecutrix. It is this order which is under challenge in this revision petition. 5. Mr. Avi Singh learned counsel appearing for the State would contend that the learned Additional Session Judge has conducted a mini trial at the time of framing of charge which is not permissible. He submitted that the investigation had recorded a medical opinion of the accused’s potency and the same may only be dislodged by the accused at trial to the satisfaction of the trial court. Mr. Avi Singh learned counsel for the State submits that the Trial Court has held the doctor’s opinion and the Investigating Officer’s collection of the same to be entirely false without giving either of them an opportunity to be cross examined. He would state that the statement under Section 164 Cr.P.C recorded on 05.01.2016 clearly records the offence that occurred in the house of the accused around September 2015 two or three days after the birthday of the accused which is admitted to be 25th September. He contend that the learned Trial Court has erred in examining the plea of alibi evidence without any cross examination and has discharged the accused on the basis of different cell tower locations of the accused and the prosecutrix during the relevant time. He contends that even if proved it will merely show that the accused and the prosecutrix did not make a call at that time. He would submit that the judgment is contrary to the settled law that at the stage of framing charge the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. It is CRL.REV.P. 448 2018 submitted that as per the evidences and materials placed on record before the Court including the FIR and statement of the Prosecutrix under Section 164 Cr.P.C a prima facie case has been made out against the accused. Mr. Singh would rely on the judgment of the Supreme Court in the case of Sajjan Kumar v. CBI 9 SCC 368 to contend that at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding the against the accused. He would state that the Supreme Court has held that the presumption of the guilt of the accused which is drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. Mr. Singh would also rely on the following judgments: i. Bihar v. Ramesh Singh 1978 SCR257 ii. Sheoraj Singh Ahlawat v. State of U.P. 11 SCC 476 iii. Ravindra v. State of MP 4 SCC 491 iv. Superintendent and Remembrance of Legal Affairs West Bangal v. Anil Kumar Bhunja and others 4 SCC 274 v. Araj Sk. v. State of West Bengal 2000 SCC Online Cal 400 vi. Rajudan Gemardan v. State of Maharashtra CRL Appeal 90 2016to substantiate his contention that the Additional Session Judge has in fact done a “mini trial” while discharging the accused which is impermissible. On the other hand Mr. Aditya Jain learned counsel appearing for the respondent supports the impugned judgement by bringing on record the various contradictions in the Statement of the prosecutrix between initial CRL.REV.P. 448 2018 complaint and her Statement under Section 164 Cr.P.C. Mr. Jain has relied on the judgment of the Supreme Court in Parshant Bharti Vs. State of NCT of Delhi 2013(9) SCC 293 and Gajraj v. State of NCT of Delhi 2011(10) SCC 675 wherein the Supreme Court had acquitted the accused in a case against Section 376 IPC by adverting to the tower locations of the mobile phones of the complainant and the accused and found that the parties were not present together at the place of occurrence. He would state that in the present case also the tower location of the accused and the complainant shows that they were far away on 27 and 28th September 2015 which is approximate time of the incident. He would state that in view of this information the entire case of the prosecution is false. Mr. Aditya Jain learned counsel for the respondent also states that the CCTV footage which has been relied upon by the Additional Session Judge while discharging the respondents is a material which is unimpeachable in nature and of sterling quality which points out to the innocence of the accused which the prosecution cannot get over and therefore no useful purpose will be served in continuing the trial against the accused. Heard Mr. Avi Singh learned counsel Additional Standing Counsel for the State and Mr. Aditya Jain learned counsel appearing for the respondents and perused the documents. The scope and ambit of Section 227 Cr.P.C has been discussed in a number of judgments. In Union of India v. Prafulla Kumar Samal 3 SCC 4 the Supreme Court laid down the following principles: “10. Thus on a consideration of the authorities mentioned above the following principles emerge: CRL.REV.P. 448 2018 1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. 3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused. 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the Court any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” In State of Orissa v. Debendra Nath Padhi 1 SCC 568 the Supreme Court after comparing Section 207 in the old Code of 1898 and Section 227 which was introduced in the new Cr.P.C observed as under: “9. Further the scheme of the Code when examined in CRL.REV.P. 448 2018 of minimum the light of the provisions of the old Code of 1898 makes the position more clear. In the old Code there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after requirements. If the evidence even if fully accepted cannot show that the accused committed the offence the accused deserves to be discharged. In the old Code the procedure as contained in Sections 207 and 207 A was fairly lengthy. Section 207 inter alia provided that the Magistrate where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report shall follow the procedure specified in Section 207 A. Under Section 207 A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under sub sectionto take evidence as provided in sub section the accused could cross examine and the prosecution could re examine the witnesses as provided in sub sectiondischarge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial as provided in sub sectionand to commit the accused for trial after framing of charge as provided in sub section summon the witnesses of the accused to appear before the court to which he has been committed as provided in sub sectionand send the record of the inquiry and any weapon or other thing which is to be produced in evidence to the Court of Session as provided in sub section 2 SCC 398 the Supreme Court took note of the judgment in Union of India v. Prafulla Kumar Samal supra) and after quoting Section 227 Cr.P.C observed as under: Code was resulting in inordinate delay and served no useful purpose. That inquiry has therefore been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge it is now to be framed by the Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code the evidence can be taken only after framing of charge.” “10. Before considering the merits of the claim of both the parties it is useful to refer to Section 227 of the Code of Criminal Procedure 1973 which reads as “227. Discharge.—If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing.” If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether CRL.REV.P. 448 2018 a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court after the trial starts. 11. At the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 11. Similarly State of M.P. v. S.B. Johari 2 SCC 57 the Supreme Court has held that charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any cannot show that the accused committed the particular offence and in such case there would be no sufficient ground for proceeding with the trial. In Dilawar Balu Kurane v. State of Maharashtra 2 SCC 135 the Supreme Court after relying on Union of India v. Prafulla Kumar Samal supra) observed as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited CRL.REV.P. 448 2018 purpose of finding out whether or not a prima facie case against the accused has been made out where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure the Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial 3 SCC 4:1979 SCC609])” A reading of the above mentioned judgments would show that while framing a charge the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and after analysing the materials before it and if two views are possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully justified in discharging the accused in exercising its jurisdiction under Section 227 Cr.P.C. It is well settled that while framing charge the Court cannot hold a mini trial for discharging the accused. In the facts of the present case the allegation of the prosecution is that the incident occurred two three days after the birthday of the accused respondent No.1. The Passport reveals that CRL.REV.P. 448 2018 the date of birth of the respondent No.1 is 25.09.1950 the offence therefore could have occurred on 27.09.2015 or 28.09.2015. Though in a rape case the time and place where the incident took place is extremely important for the accused to answer a charge which is framed against him however even if we ignore that necessity and we take an approximate date when the incident would have took place the tower locations of the accused and the prosecutrix show that they were always at different locations throughout the period. On 27.09.2015 the tower locations of the respondent were that of Himachal Pradesh Haryana and Punjab and after entering Delhi on 28.09.20I5 his tower location throughout the night until the next morning was in the area of Safdar Jung Enclave Delhi. The locations of the prosecutrix on 27.09.2015 and on 28.09.2015 were in the area of Qutab Minar Metro Station. The accused and the prosecutrix were therefore never together at any time. The call detail record therefore completely destroys the case of the prosecution: a) It is not the case of the prosecution that the accused did not have his mobile phone during the period or that his phone was taken by somebody else nor it is the case of the prosecution that the prosecutrix was not having her mobile when she went to the Safdarjung Club. b) The mobile phone of the accused which has been seized does not show any obscene content. There is nothing on record to show that the mobile phone has been tampered with or the contents have been c) Even after the incident the prosecutrix has taken the salary money from the accused and has encashed the cheques. d) In the light of the above mentioned facts the delay in lodging the FIR deleted. is fatal. CRL.REV.P. 448 2018 e) The prosecutrix herself had came to the Police Station and had given an application and an affidavit stating that the dispute had been amicably settled. There are several contradictions in the statement given by the prosecutrix in her complaint to the police about an incident which transpired about six months before the incident and the statement made under Section 164 Cr.P.C to the Magistrate which is recorded on the same day. In the present case therefore other than the statement of the prosecutrix there is hardly any material which points towards the accused. Even though the statement of the prosecutrix alone is sufficient to bring out a case of rape but in the present case the material shows that at the time the offence was committed on the prosecutrix the respondent No.1 was not there with the prosecutrix. 16. The learned Additional Session Judge by the judgment impugned herein has considered all the material before him while discharging the accused. This Court while exercising its jurisdiction under Section 397 401 does not find any infirmity in the order impugned which calls for interference. It is well settled that while exercising its jurisdiction under Section 397 401 the revisional Court should not act like an appellate court. It cannot be said that the judgment of the Trial Court is so perverse or is completely contrary to law warranting any interference. Even if a different conclusion is possible it is well settled that a revisional court does not CRL.REV.P. 448 2018 substitute its conclusion to the one arrived at by the lower court unless is it perverse or contrary to law. In view of the above the petition is dismissed. SUBRAMONIUM PRASAD J. FEBRUARY 26 2021 CRL.REV.P. 448 2018

Courts should not interfere with Arbitral award unless such award portrays perversity unpardonable U/S.34 of the Arbitration Act: High Court of Delhi

It is trite law that an arbitral award can be set aside only on the limited ground as set out in Sub-section (2) and (2A) of Section 34 of the A&C Act. This Court cannot re-appreciate and re-evaluate the evidence and supplant its opinion in place of that of the Arbitral Tribunal. This Court does not act as a court of first appeal and the decision of an arbitrator with regard to the facts is final. It cannot be interfered with unless the same is patently illegal or otherwise falls foul of the fundamental policy of Indian law. This was held in ORIENTAL INSURANCE CO. LTD. V. DIAMOND PRODUCTS LTD. [O.M.P. (COMM.) 147 of 2018] in the High Court of Delhi by a single bench consisting of JUSTICE VIBHU BAKHRU. Facts are that disputes had arisen between the parties in respect of an insurance claim made by the respondent company in terms of the Standard Fire and Special Peril Policy issued by the petitioner. The respondent filed a petition under Section 11 of the A&C Act before this court which has culminated in an award. The petitioner has filed a petition against the same award. The counsel for the petitioner has submitted that the award should be set aside on the ground that the same is in conflict with the public policy of India, inasmuch as, the Arbitral Tribunal has erred in not following the Surveyor Report and has overlooked the observations of the Surveyor. The counsel of the respondent submitted that the Arbitral Tribunal has correctly not assigned due weightage to the Surveyor Report, in which he had failed to provide any reason to make an overall ad-hoc deduction of 5% on account of deadstock, from the total value of raw material. The court made reference to the judgment of  Apex court in the case of  Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd., wherein it was held that “ There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner unless the court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party’s autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated”. Considering the facts of the case and the legal precedents, the court observed there was nothing contrary to the fundamental policy of India or opposed to the most basic notions of morality and justice. Thus the court held that no interference should be made with the decision of the Arbitral Tribunal on the merits of the claims raised by the respondent.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 21.05.2021 O.M.P. 147 2018 12775 2019 & 3041 2020 and IA Nos. 4710 2018 ORIENTAL INSURANCE CO. LTD. DIAMOND PRODUCTS LTD. Petitioner Respondent Advocates who appeared in this case: For the Petitioner For the Respondent : Mr A.K. Singla Senior Advocate with Mr Abhishek Gola and Mr Akshit Sachdeva Advocates. Mr Vineet Kumar Advocate. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996impugning an arbitral award dated 03.11.2017 passed by the Arbitral Tribunal comprising of three arbitrators. The impugned award was rendered in the context of disputes that had arisen between the parties in respect of an insurance claim O.M.P.1418 made by the respondent company in terms of the Standard Fire and Special Peril Policy issued by the petitioner. The respondent is a company and is inter alia engaged in the business of manufacturing various types of footwear. It has two manufacturing units one at A 9 Mayapuri Industrial Area Phase II New Delhi and the other at village Moginand Kala Amb Nahan Road District Sirmour H.P. The respondent had purchased a Standard Fire and Special Perils Policy bearing no. 215502 11 2008 293from the petitioner for an assured sum of ₹24 25 00 000 which was increased to ₹27 25 00 000 with effect from 30.06.2008 in respect of its manufacturing unit at village Moginand for the period from 20.03.2008 to 19.03.2009. On 14.12.2008 a fire broke out at manufacturing unit located at village Moginand Kala Amb. The same resulted in severe damage to the building plant and machinery stocks and furniture fixtures fittings computers peripherals and other movables. The respondent reported the occurrence of the said event to the petitioner by a letter dated 15.12.2008. The petitioner appointed a Surveyor to assess the damage suffered. On 16.12.2008 the Surveyor visited the unit and submitted a preliminary survey report estimating the loss at ₹12 00 00 000 . O.M.P.1418 On 10.01.2009 the respondent submitted a provisional claim in the prescribed format claiming an aggregate loss of ₹13 21 56 318 . In March 2009 the petitioner released an interim payment of ₹2 50 00 000 to the respondent. Thereafter on 10.08.2009 the respondent revised its claim to a sum of ₹12 02 31 749 . The Surveyor submitted its final report on 18.03.2010 assessing the amount payable at ₹ 5 46 72 292 and the respondent was asked to furnish a letter of consent for receiving the aforesaid amount in full and final settlement of its claim(s). The respondent states that although the said amount was much less than its entitlement the respondent was willing to accept the same as it was in dire need of funds. Accordingly on 05.05.2010 the respondent submitted its letter of consent for receiving an amount of ₹ 5 46 72 292 against its claim for ₹ 12 02 31 749 . Despite furnishing the consent letter the amount was not released. The petitioner sought a letter of consent discharge voucher from the respondent on two occasions and the respondent complied with the same on both occasions. In December 2010 the petitioner released the final amount of ₹2 96 59 810 after deducting the interim payment of ₹2 50 00 000 towards full and final settlement. 11. Thereafter the respondent sent a letter dated 13.12.2010 registering its protest and claiming that it was coerced to accept the lower sum against its claims. And its agreement to accept the amount O.M.P.1418 offered was secured by undue influence. The respondent invoked the Arbitration Clause and sought reference of the disputes to arbitration. The petitioner did not agree to refer the disputes to arbitration resultantly the respondent filed a petition under Section 11 of the A&C Act before this court and by an order dated 31.05. 2011 passed by this court the Arbitral Tribunal was constituted. The arbitral proceedings have culminated in the impugned award. 12. By the impugned award the Arbitral Tribunal had directed the petitioner to pay the respondent a sum of ₹2 08 76 700 on account of loss of stock interest at the rate of 15% per annum on the sum of ₹2 96 59 810 which was paid by the petitioner belatedly for the period 05.05.2010 12.12.2010 amounting to ₹27 05 950 iii) ₹75 000 towards cost of litigation andfuture interest at the rate of 9% per annum on total award made amounting ₹2 35 82 650 from the date of award till its realization. 13. Mr. AK Singla learned Senior Counsel appearing on behalf of the petitioner has assailed the impugned award on the ground that the same is in conflict with the public policy of India inasmuch as the Arbitral Tribunal has erred in not following the Surveyor Report and has overlooked the observations of the Surveyor. In this regard he submitted that the Arbitral Tribunal had erred in relying on the manufacturing cum trading account to assess the loss suffered on semi furnished goods despite the Surveyor‟s categoric finding that the loss cannot be calculated on the basis of the trading account due to O.M.P.1418 high fluctuations in the gross profit rate. He further contended that the Surveyor was justified in making a 20% ad hoc deduction from the stocks and quantity of finished goods as the respondent did not furnish the records to substantiate the quantity of loss suffered. Next he submitted that in any event the respondent had agreed to accept the amount assessed in full and final settlement of its claim and therefore no further claim challenging the Surveyor Report could be made at a subsequent stage. 14. Mr. Vineet Kumar learned counsel appearing on behalf of the respondent submitted that the Arbitral Tribunal has correctly not assigned due weightage to the Surveyor Report as the Surveyor had made ad hoc deductions on assumptions without assigning any weight to the physical examination conducted on 16.12.2008 and other books of accounts and documents which were duly verified by the Surveyors. He submitted that in relation to loss of stock and raw materials the Arbitral Tribunal has correctly evaluated the loss on the basis of „First In First Out‟ method which is based as per Accounting Standard no.2. The Surveyor has failed to provide any reason to make an overall ad hoc deduction of 5% on account of dead stock from the total value of raw material. In relation to semi furnished goods he submitted that the Surveyor made an ad hoc deduction of 10% and erroneously discarded manufacturing cum trading account method. He submitted that the Arbitral Tribunal was correct in assessing the loss on the basis of the trading account. Finally in relation to the loss suffered against the O.M.P.1418 quantity of finished goods Mr Kumar contended that the Surveyor had erred in computing gross profit at 50.81% on the basis of manufacturing cum trading account method as he did not consider the amount which was debited towards depreciation as a part of cost of production. In the event the amount of depreciation was considered the gross profit for the year ended 31.03.2008 would be in negative and the Arbitral Tribunal had correctly assessed the loss by assuming gross loss of 2.41% on the sale value. Finally he submitted that the petitioner is incorrect in relying on the consent letter dated 05.05.2010 as the respondent was compelled to sign the consent letter without which the insured amount would not have been released. He also submitted that despite repeated requests the claim amount was not released by the petitioner and it was under these circumstances the respondent was forced to sign the consent letter. Reasons and Conclusion 15. As is apparent from the above the controversy in the present petition essentially revolves around two questions. First whether the contract of insurance between the parties stood fully discharge by accord and satisfaction as the respondent had agreed to accept the payments disbursed by the petitioner as full and final settlement of its claims. And second whether the respondent was entitled to any additional amount against its claims for loss of stocks material. Insofar as the first issue is concerned Mr. Singla had contended that since the respondent had given a consent letter accepting the O.M.P.1418 amounts determined by the Surveyor as full and final settlement of its claims it was precluded from raising any disputes in that regard. 17. The Arbitral Tribunal had examined the aforesaid issue. It had noted that the Final Survey Report was received on 18.03.2010 and the petitioner company had asked the respondent to send a consent letter accepting ₹5 46 72 292 as full and final settlement of its claims. The respondent had in response to the requirement of furnishing a consent letter submitted the same on 05.05.2010. Although the respondent had complied with the petitioner‟s demand for a consent letter the petitioner did not immediately release the admitted amounts due against the respondent‟s claim. After considerable time had elapsed the petitioner once again asked the respondent to send a fresh letter of consent. The respondent did so on 03.09.2010. The Arbitral Tribunal noted that the said consent letter was in the form as forwarded by the petitioner. Despite the same the petitioner did not release the funds due the respondent. Subsequently it once again called upon the respondent to execute yet another consent letter. The respondent once again complied by sending a letter dated 06.12.2010. The Arbitral Tribunal noted that the language of the consent letter dated 06.12.2010 was similar to the consent letter dated 03.09.2010. 18. The Arbitral Tribunal also evaluated the evidence led by parties and in particular the cross examination of Sh. Rajender Kumar Divisional Manager of the petitioner. Sh. Rajender Kumar confirmed that the amounts due to the respondent would not have been released O.M.P.1418 without first taking its consent to accept the same in full and final satisfaction of its claims and executing a discharge voucher. 19. After considering the evidence the Arbitral Tribunal held that the petitioner company was in a dominant position and its refusal to pay the admitted amount without the respondent executing a consent letter in the format as required would amount to exerting undue influence and duress. 20. This Court finds no infirmity in the aforesaid conclusion. It is seen that despite the respondent furnishing the consent letters as required the petitioner did not immediately release the balance of the assessed loss. It was explained on behalf of the petitioner that the delay in doing so was because the petitioner was required to fully verify the claims. It was stated that after the Surveyor had submitted its report investigators were appointed to inter alia investigate the issue of stock transfer to the respondent‟s Kala Amb unit from its other unit. Thus there is no dispute that the petitioner did not simply act on the consent letter or on the basis of any discussion to settle the claims. It had taken all steps to verify the claims made by the respondent and yet had withheld the sums as due to the respondent against its claim till the respondent had complied with the directions of furnishing the consent letter discharge voucher. It is also not disputed that the fire had substantially destroyed a large part of the respondent‟s unit and the respondent was under considerable financial distress on this account. It was contended on behalf of the petitioner O.M.P.1418 that keeping this in view the petitioner had in fact released an ad hoc payment of ₹2.5 crores against the claims made by the respondent. 21. Considering the evidence on record this Court finds no reason to differ with the conclusion of the Arbitral Tribunal that the respondent had furnished the consent letters discharge voucher under economic duress and the same was without free consent. The respondent had immediately after receipt of the balance amount raised its protest. Insofar as the claims made by the respondent are concerned the Arbitral Tribunal had rejected most of the claims. The Arbitral Tribunal found the respondent‟s claim regarding damage to the building was exaggerated. It noted that initially the respondent had filed a claim of ₹6 71 04 488 towards loss damage to building but the same was later reduced to ₹5 26 64 697 . The Arbitral Tribunal observed that the capital value of the building which was constructed a few months prior to the incident was reflected at ₹7 99 77 081 in the books maintained by the respondent. The capital value of the building also included pre operative expenses of ₹1 13 63 505 . Thus the effective capital value of the building as reflected in the books of the respondent was ₹6 86 13 576 . This included the cost of construction of the plinth and the foundation of the building as well. Considering the aforesaid the Arbitral Tribunal held that the estimate of value furnished by M s Design Forum Architect which was relied upon by the respondent was exaggerated. The Surveyor had appointed Sh. R.C. Bagga a Civil Engineer to estimate the cost of O.M.P.1418 construction of the damaged building and had based the assessment of loss on the estimates submitted by him. 23. The Arbitral Tribunal observed that one of the reports submitted by M s Design Forum was dated 10.08.2009 and the assessed loss was equal to the claim made by the respondent prior to the date of the said report. In view of the above the Arbitral Tribunal held that the circumstances lent support to the petitioner‟s objection that the report estimate was prepared by M s Design Forum to suit the convenience of the respondent. 24. As noted above the capital value of the building after reducing pre operative expenses of ₹1 13 63 505 was reflected in the books of the respondent at ₹6 86 13 576 . As against the aforesaid value the respondent had claimed ₹5 26 64 697 . The Arbitral Tribunal considered the evidence led before and found that the Surveyor‟s assessment based on the report of Sh. R.C. Bagga was more reliable. In view of the above the Arbitral Tribunal held that the respondent was not entitled to any further amount againt its claim for loss and damage to the building. 25. The respondent did not seriously contest the assessed loss on plant and machinery including fire fighting equipment or the loss on account of furniture fixtures fittings computers computer peripherals and air conditioners. 26. The Arbitral Tribunal did not accept the respondent‟s claim for ₹15 07 041 towards fees for architects surveyors and consulting O.M.P.1418 engineers. According to the terms and conditions of the Policy only 3% of the adjusted loss was covered towards the said expenses. Therefore the Arbitral Tribunal found that insofar as claim for loss on account of fees is concerned the Surveyor‟s report could not be faulted . 27. The respondent had made a claim of ₹2 88 652 on account of expenses incurred towards removal of debris. The petitioner had assessed the same at ₹1 50 000 . The Arbitral Tribunal noted that in terms of the policy 1% of the insured amount was admissible subject to the actual amount incurred. The Tribunal noted that the claim made included labour cost of ₹2 26 000 which in turn included salary of administrative staff. In view of the above the Arbitral Tribunal found that there was no interference with the decision of the Surveyor to restrict the said claim to ₹1 50 000 . 28. The controversy relates mainly on account of the Arbitral Tribunal‟s decision to enhance the amount of loss on account of stocks. 29. Mr. Singla contended that the Arbitral Tribunal had grossly erred in enhancing the value of the claim and not concurring with the Surveyor‟s assessment regarding loss of stocks. The Surveyor had divided the stocks into raw material semi finished goods and finished goods. And deducted 20% of the quantity as claimed as the respondent had not maintained stock records for different stages of production. O.M.P.1418 30. The respondent had deducted 20% of the valuation based on selling price as margin for profit. The Surveyor had rejected the same on the ground that the gross profit margin for the financial year ended 31.03.2008 was 50.81%. The Arbitral Tribunal examined Surveyor‟s report and found that the Surveyor had adopted different methodologies to assess the loss damage in respect of the raw materials semi finished goods and finished goods. Although the assessment was based on the stock statement furnished by the respondent to Bank of India the Surveyor had doubted the veracity of the said statement and discounted the claims submitted by the 31. The respondent claimed that it was difficult to maintain stock records at each stage of production but it had maintained the stocks as received and periodically furnished the same to its lending bankindicated gross loss at the rate of 2.41%. It accepted the manufacturing cum trading account for the period from 01.04.2008 to 14.12.2008 as prepared on the assumption of gross loss of 2.41% which indicated the value of closing stock as on 14.12.2008 at ₹6 25 08 799 O.M.P.1418 32. Mr. Singla had submitted that the Arbitral Tribunal had erred in accepting the gross loss at 2.41% as the Surveyor‟s report indicated a higher profit margin and therefore the impugned award was liable to be set aside. This contention is unpersuasive because the Arbitral Tribunal had examined the said issue and had proceeded on the basis that the gross loss was required to be computed after considering the amount towards depreciation which had been excluded by the Surveyor. This Court finds no infirmity with the view of the Arbitral Tribunal that the cost of goods are required be computed after taking into account the depreciation on plant and machinery used in the manufacturing process. Since the respondent had submitted a claim for ₹5 98 12 000 the Tribunal accepted the said value as the same was less than the closing stock as determined on the basis of a manufacturing and trading account drawn up by assuming the gross loss at 2.41% of the sale value. The Tribunal also reduced the assessed value of the damaged stock by 5% on account of the dead stock. The Arbitral Tribunal noted that the value of the stock saved amounted to ₹1 32 47 435 . After deducting the amount of stocks that were saved and accounting for 5% dead stock the Arbitral Tribunal determined the loss of stocks at ₹4 42 36 337 . The Surveyor had determined the loss at ₹2 33 59 637 and therefore the Arbitral Tribunal awarded a sum of ₹2 08 76 700 being the balance amount of claim on account of loss of material payable to the respondent. 33. Although Mr. Singla had invited this Court to examine the question as to the correctness of the decision of the Arbitral Tribunal O.M.P.1418 regarding assessment of loss the same is beyond the scope of examination under Section 34 of the A&C Act. It is trite law that an arbitral award can be set aside only on the limited ground as set out in Sub section and of Section 34 of the A&C Act. This Court cannot re appreciate and re evaluate the evidence and supplant its opinion in place of that of the Arbitral Tribunal. This Court does not act as a court of first appeal and the decision of an arbitrator with regard to the facts is final. It cannot be interfered with unless the same is patently illegal or otherwise falls foul of the fundamental policy of Indian law.3 SCC 49) In Dyna Technologies Ltd. v. Crompton Greaves Ltd.: 2019) 20 SCC 1 the Supreme Court had observed as under: “24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner unless the court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course on factual aspects then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. O.M.P.1418 25. Moreover umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.” 35. This Court is unable to accept that the impugned award suffers from any patent illegality that strikes at the root of the said matter. It is also not contrary to the fundamental policy of India or opposed to the most basic notions of morality and justice. Thus no interference with the decision of the Arbitral Tribunal on the merits of the claims raised by the respondent is warranted. 36. The Arbitral Tribunal had also concluded that there was an inordinate delay in release of the amount of the assessed claim. The petitioner had released ₹2 50 00 000 on an interim basis by a cheque dated 30.03.2009 and had thereafter on the basis of the Final Survey Report assessed the loss at ₹5 46 72 292 . Although it had assessed the said loss it did not immediately release the same to the respondent. By a letter dated 04.05.2010 the petitioner called upon the respondent to furnish a letter of consent to accept the said amount in full and final settlement of the claim. Thus at least by 04.05.2010 the petitioner was in a position to release the balance amount of the assessed loss. The respondent furnished a letter of consent dated 05.05.2010 but the balance amount was not released even after receipt of the said letter. In the circumstances the Arbitral Tribunal‟s decision O.M.P.1418 to award interest for the period 05.05.2010 to 13.12.2010 on the admitted value of the balance losscannot be faulted. In view of the above this Court finds no ground to interfere with the impugned award. The petition is unmerited and is accordingly dismissed. All pending applications are also disposed of. VIBHU BAKHRU J MAY 21 2021 O.M.P.1418

It is morally and socially obnoxious to withhold a person’s pension and other retiral benefits.: Manipur High Court

Withholding of pension and other retiral benefits of retired employees for years together, is not only illegal and arbitrary but a sin if not an offence since no law has declared so. It is also against the concept of social and economic justice which is one of the founding pillars of our constitution as upheld by the Hon’ble High Court of Manipur through the learned bench led by Justice Kh. Nobin Singh in the case of Shri. Y. Thaiba v. The State of Manipur (WP(C) No. 418 of 2019). The facts of the case are that according to the petitioner, he was initially appointed as the Assistant Teacher on regular basis vide order dated 27-01-1972 of the DEO, Directorate of Education(S), Manipur and he continued to work in that capacity till 28-02-1973 when he was sent on deputation to District Council, Tadubi. The petitioner, on deputation, started discharging his duties as an Assistant teacher at Liyai Primary High School under the Autonomous District Council, Senapati District, Manipur and had been rendering his service sincerely and faithfully without any stigma till the issuance of a conditional termination order dated 29-02-2008 by the Chief Executive Officer, ADC, Senapati, by which he was allowed to retire from service on attaining the age of superannuation with effect from 29-09-2008(A/N) subject to the approval of the Director of Education, Government of Manipur. In order to grant the approval by the Director of Education, Manipur, he approached him and other concerned authorities by submitting representation after representation so that he could be formally allowed to retire from service and he could enjoy his pension and retiral benefits. Being aggrieved by the inaction on the part of the Respondents, the petitioner approached this Court by way of writ petition which was disposed of on 07-10-2016 with the direction that the State Respondents should pass appropriate orders so that the petitioner could enjoy his pension and retiral benefits within a period of two months therefrom. Since the State respondents failed to comply with this Court’s order, a contempt case being Contempt Petition came to be filed by the petitioner. Surprisingly, during the pendency of the said contempt case, the State respondents preferred an appeal, challenging the order dated 07-10-2016. After having heard the parties, this Court dismissed the appeal. In compliance with this Court’s order dated 07-10-2016, the Director of Education, Government of Manipur issued an order dated 11-02-2019 allowing the petitioner to retire from service on attaining the age of superannuation with effect from 29-02-2008. After the said order being issued, the petitioner approached the concerned authorities/ respondents to release his pension and retirement benefits by way of a representation dated 29-03-2019. However, the State respondent failed to take any positive action thereon. Being aggrieved by the inaction on the part of the respondents, the petitioner filed the instant writ petition on the inter-alia grounds that the respondents being the “State” under Article 12 of the Constitution of India, its officers are public functionaries. The Hon’ble Court held, “It is imperative on the part of the State Government to take immediate steps to ensure that the petitioner enjoys his pension and retiral benefits at the earliest possible. It is unfortunate that the petitioner after having retired in the year, 2008, has not been able to enjoy his valuable rights and property as held by the Hon’ble Supreme Court for the last more than ten years and that too, after the order dated 07-10-2016 having been passed by this Court. For the reasons stated hereinabove, the instant writ petition is allowed with the direction that the respondents shall compute the pension and retiral benefits of the petitioner and pay him the amount thereof within three months, from the date of receipt of a copy of this judgment and order, with interest thereon @ 8% per annum from date of his retirement till the date of payment. There shall be no order as to costs.”

IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No. 4119 Shri. Y. Thaiba aged about 72 years permanently resident of Liyai Village P.O & P.S Tadubi Senapati District Manipur 795104. Versus … Petitioner 1. The State of Manipur represented by the Commissioner Secretary Education Govt. of Manipur at Secretariat Building Babupara Imphal 795001. 2. Director Education Manipur. Govt. of Manipur at RIMS Doctors Colony Lamphelpat Imphal Manipur 795004. 3. The Chief Executive Officer Autonomous District CouncilSenapati Senapati District Manipur. 795106. 4. The Accountant General Manipur at Imphal. Babupara Imphal 795001. … Respondents B E F O R E HON’BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner ∷ Shri S. Thoi Thoi Meitei Advocate For the respondents ∷ Shri Th. Vashum GA Shri Moses Pao Advocate Date of Hearing ∷ 08 11 2021 Date of Judgment & Order ∷ 24 11 2021 JUDGMENT AND ORDER Heard Shri S. Thoi Thoi Meitei learned Advocate appearing for the petitioner and Shri Th. Vashum learned GA appearing for the respondents while Shri Moses Pao learned Advocate appears for the Accountant General Manipur. By the instant writ petition the petitioner has prayed for issuing WP(C) No. 4119 Contd… a writ of mandamus or any other appropriate writ to direct the respondents to grant him his pension and retirement benefits with @ 10% interest from the date of his retirement and also to direct the respondents to fix the responsibility for not granting them to him. In addition thereto a prayer has been made to direct the respondents to extend the benefit of the judgment and order dated 07 10 2016 passed by this Court in WP(C) No.5616. 3.1] According to the petitioner he was initially appointed as the Assistant Teacher on regular basis vide order dated 27 01 1972 of the DEO Directorate of Education(S) Manipur and he continued to work in that capacity till 28 02 1973 when he was sent on deputation to District CouncilTadubi vide order dated 27 08 1973. 3.2] The petitioner on deputation started discharging his duties as a Assistant teacher at Liyai Primary High School under the Autonomous District Council Senapati Senapati District Manipurand had been rendering his service sincerely and faithfully without any stigma till the issuance of a conditional termination order dated 29 02 2008 by the Chief Executive Officer ADC Senapati by which he was allowed to retire from service on attaining the age of superannuation with effect from 29 09 2008(A N) subject to the approval of the Director of Education(s) Government of Manipur. 3.3] In order to grant the approval by the Director of Education Manipur he approached him and other concerned authorities by WP(C) No. 4119 Contd… submitting representation after representation so that he could be formally allowed to retire from service and he could enjoy his pension and retiral benefits. Being aggrieved by the inaction on the part of the Respondents the petitioner approached this Court by way of writ petition being WP(C) No.7616 which was disposed of on 07 10 2016 with the direction that the State Respondents should pass appropriate orders so that the petitioner could enjoy his pension and retiral benefits within a period of two months therefrom. 3.4] Since the State respondents failed to comply with this Court’s order dated 07 10 2016 a contempt case being Contempt Petition No.317 came to be filed by the petitioner. Surprisingly during the pendency of the said contempt case the State respondents preferred an appeal being WA No.31 of 2018 along with MC No.45 of 2018 challenging the order dated 07 10 2016. After having heard the parties this Court dismissed the appeal vide its order dated 13 12 2018. 3.5] In compliance with this Court’s order dated 07 10 2016 the Director of Education(S) Government of Manipur issued an order dated 11 02 2019 allowing the petitioner to retire from service on attaining the age of superannuation with effect from 29 02 2008 No. 4119 Contd… 3.6] Being aggrieved by the inaction on the part of the respondents the petitioner filed the instant writ petition on the inter alia grounds that the respondents being the "State" under Article 12 of the Constitution of India its officers are public functionaries. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. In a welfare State like India which is governed by the rule of Law it is the duty of the respondents to follow and obey the rule of law and their inaction depriving the petitioner from enjoying his pension and retirement benefit in spite of his retirement is unconstitutional bias and arbitrary. In order to substantiate his case the petitioner has referred to and relied upon various decisions of the Hon’ble Supreme Court. The stand of the State Government as reflected in their affidavit is that the petitioner could not produce the order dated 27 08 1973 nor was his name found in the list of teachers transferred on deputation to ADC Senapati. The order dated 11 02 2019 issued by the Director of EducationManipur allowing him to retire from service with effect from 29 02 2008 was not the final order and it was made subject to the outcome of the petition for special leave to appeal preferred before the Hon’ble Supreme Court vide Diary No.16916 of 2019. An affidavit was filed by the respondent No.3 stating that the petitioner had been working as Assistant Teacher under the District Council Tadubi the ADC Senapati vide order dated 27 08 1973 and was allowed to retire from service on attaining the age of superannuation vide order dated 29 02 WP(C) No. 4119 Contd… S) Manipur. 2008 subject to the approval being granted by the Director of Education 5] In his rejoinder the petitioner stated that on 03 05 2019 the State Government preferred a defective special leave petition before the Hon’ble Supreme Court which was not cured till 13 09 2019 when the their affidavit was filed in this Court. The State Government did file it deliberately to delay the conclusion of the proceedings pending before this Court. Thereafter on 17 02 2020 the petitioner filed an additional affidavit enclosing therewith a copy of the order dated 14 02 2020 passed by the Hon’ble Supreme Court dismissing the said special leave petition. After the special leave petition having been dismissed the Addl. Director of EducationManipur issued an order dated 19 10 2020 modifying its earlier dated 11 02 2019 to the effect that the petitioner is allowed to enjoy retirement benefits and other as admissible under the rules. 6] After the order dated 19 10 2020 being issued by the State Government the instant writ petition could have been disposed of but the grievance of the petitioner is that the pension and retiral benefits have not yet been given to him. In other words no amount towards his pension and retiral benefits has been released to him. 7] It may be noted that the petitioner claimed that he was initially appointed as Assistant Teacher on regular basis in the Education Department Government of Manipur vide order dated 27 01 1972 and thereafter he was sent to ADC Senapati on deputation. While on WP(C) No. 4119 Contd… deputation he was allowed to retire from service on attaining the age of superannuation with effect from 29 02 2008 subject to the approval to be granted by the State Government. But the approval was not granted by the State Government despite several representations being submitted by the petitioner. When the petitioner approached this Court by way of a writ petition being WP(C) No.563 of 2016 it was disposed of on 07 10 2016 by this Court with the direction that the State Government should issue appropriate orders so that the petitioner could enjoy his pension and retiral benefits within two months thereform. This order dated 07 10 2016 had attained finality when the State Government’s special leave petition being dismissed by the Hon’ble Supreme Court on 14 02 2020. It ought to be complied with by the State Government and having no alternative the State Government issued the order dated 19 10 2020 towards the compliance of this Court’s order. 8] The contention of the counsel appearing for the petitioner is that the order dated 19 10 2020 being issued by the State Government the petitioner has not yet been given his pension and retiral benefits. The short question that arises for consideration by this Court is as to whether the issuance of the order dated 19 10 2020 by the State Government would suffice in the sense that it would serve the purpose of complying with this Court’s order dated 07 10 2016. The answer is in the negative for the reason that even after a lapse of more than a year from the day of issuing the said order dated 19 10 2020 the petitioner has not yet been given the opportunity to enjoy his pension and retiral benefits. WP(C) No. 4119 Contd… There is no guarantee that the needful would be done by the State Government within a reasonable time from now onwards. 9] In State of Kerala v. M Padmanabhan Nair 1 SCC 429 the Supreme Court held as under: Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become under the decisions of this Court valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment." It has further been held: Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over emphasized and it would not be unreasonable to direct that the liability to pay panel interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement." On top of that in a catena of decisions the Hon’ble Supreme Court held that withholding of pension and other retiral benefits of retired WP(C) No. 4119 Contd… employees for years together is not only illegal and arbitrary but a sin if not an offence since no law has declared so. The officials who are still in service and are instrumental in such delay causing harassment to the retired employee must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of social and economic justice which is one of the founding pillar of our constitution. 10] In view of the aforesaid circumstances and the law laid down by the Hon’ble Supreme Court it is imperative on the part of the State Government to take immediate steps to ensure that the petitioner enjoys his pension and retiral benefits at the earliest possible. It is unfortunate that the petitioner after having retired in the year 2008 has not been able to enjoy his valuable rights and property as held by the Hon’ble Supreme Court for the last more than ten years and that too after the order dated 07 10 2016 having been passed by this Court. It may be noted that an order passed by the Court is binding between the parties and will have to be complied with by them. The failure to do so will attract the provisions of the Contempt of Courts Act. Simply and truly speaking the scheme of the Constitution envisages that an appeal can be preferred before the High Court against an order passed by the subordinate Court following the procedure prescribed in law and likewise an appeal can be preferred before the Hon’ble Supreme Court against the order passed by the High Court. The order passed by the Hon’ble Supreme Court is final. This has exactly happened in the present case for the reason that the State Government did loss the battle upto Hon’ble Supreme Court and WP(C) No. 4119 Contd… therefore the compliance with this Court’s order dated 07 10 2016 by the State Government is indispensable for the end of justice. In fact the petitioner has been unfairly and illegally denied the opportunity of enjoying his pension and retiral benefits. 11] For the reasons stated hereinabove the instant writ petition is allowed with the direction that the respondents shall compute the pension and retiral benefits of the petitioner and pay him the amount thereof within three months from the date of receipt of a copy of this judgment and order with interest thereon @ 8% per annum from date of his retirement till the date of payment. There shall be no order as to costs. FR NFR WP(C) No. 4119 Contd…

Appellant alleges that the respondent is trying to benefit the concerned party: Orders of AA under the RTI Act.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Pradeep Vidhani v CPIO, SEBI, Mumbai (Appeal No. 4298 of 2021) dealt with an issue in connection with the Right to Information Act, 2005. The appellant, Mr Pradeep Vidhani had filed an application via RTI MIS Portal on the 13th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 11th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 11th of May, 2021 on his application, the appellate decided to file an appeal on the 5th of June, 2021, which the Office of Appellate authority had received on the 7th of June. In his application, the appellate was seeking the following information with respect to GIC Housing Finance Limited (company): 7(A). Annual Accounts for the years 2015-16, 2016-17, 2017-18, 2018-19, 2019-20, as submitted to the Department, along with all the information available with SEBI with respect to the company. The respondent in response to query numbers 7(A) and 8, informed that in terms of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, listed companies are required to file reports, statements, documents and any other information with the recognized stock exchange(s), where it has listed its specified securities. The respondent also provided the links of the websites of the exchanges, for accessing such information. The appellant filed the appeal on the grounds that he was aggrieved by the response provided by the respondent and submitted that it is not clear from the response whether the requested information is available with the respondent while also alleging that the respondent is trying to benefit the concerned party in some way or the other. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri K Lall vs. Shri M K Bagri (CIC/AT/A/2007/00112, order dated April 12, 2007) held 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 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.” Similar observations were made by this forum in the matter of Nirali Mehta vs. CPIO, SEBI (October 15, 2018). The appellant authority found the claim of the appellate of the respondent trying to benefit the other party as baseless and unsubstantiated allegation which is not tenable.

Appeal No. 42921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42921 Pradeep Vidhani CPIO SEBI Mumbai The appellant had filed an application dated April 13 2021under the Right to Information Act 2005 against the said response dated May 07 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 query numbers 7(A) and 8 inter alia sought the following information with respect to GIC Housing Finance Limited7(A). Annual Accounts for the years 2015 16 2016 17 2017 18 2018 19 2019 20 as submitted to the Department along with all the information available with SEBI with respect to the company. 8. Inspection of record copy certified extracts of the Audited and Annual Report submitted by the company from the year 2015 to 2020 along with certified copy of documents sought above. The respondent in response to the query numbers 7(A) and 8 informed that in terms of SEBIRegulations 2015 listed companies are required to file reports statements documents and any other information with the recognized stock exchange(s) where it has listed its specified securities. The respondent also provided the links of the websites of the exchanges for accessing such information. 4. Ground of appeal On perusal of the appeal it appears that the appellant is aggrieved by the response provided by the respondent. The appellant in his appeal inter alia submitted that it is not clear from the response whether the requested information is available with the respondent. The appellant has also alleged that the respondent is trying to benefit the concerned party in some way or the other. Appeal No. 42921 I have perused the queries and the response provided thereto. I note that the respondent has clearly informed regarding availability of reports statements documents and any other information filed by the listed companies with the recognized stock exchange(s) where it has listed its specified securities. On consideration I find that the requested information is available in the public domain and the same can be accessed by the appellant. In this context I note that Hon’ble CIC in Shri K Lall vs. Shri M K Bagri held 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 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.” Similar observations were made by this forum in the matter of Nirali Mehta vs. CPIO SEBI (October 15 2018). 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 guided the appellant to access the websites of the stock exchanges where reports statements documents etc. filed by the listed companies are available. Accordingly I do not find any deficiency in the response. Further the appellant in his appeal has alleged that the respondent is trying to benefit the concerned party in some way or the other. I find that this is a baseless and unsubstantiated allegation which is not tenable. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 07 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Under Section 42(4) Captive consumer/Captive users are not liable to pay Additional Surcharges: Supreme Court of India

Sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive a supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required, and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH & Hon’ble Justice SANJIV KHANNA in the matter of Maharashtra State Electricity vs M/s. JSW Steel Limited & Ors [CIVIL APPEAL NOS. 5074-5075 OF 2019] The facts of the case were that a petition before the State Commission for MYT approval for FY 2014-2015, provisional truing up of ARR for FY 2015-2016, and Multi-Year Tariff for 3rd Control Period FY 2016-2017 to FY 2019-2020. The State Commission held that the additional surcharge leviable under Section 42(4) of the Electricity Act, 2003  is not applicable to captive users to the extent of their self-consumption from such plants. The appellant submitted its revised Review Petition being Case No.195 of 2017 for approval of final true-up of ARR for FY 2015-2016 and 2016-2017, provisional true-up of ARR for FY 2017-2018, and approval for a revised forecast of ARR for FY 2018-2019 and 2019-2020, inter alia, including the prayer “to approve additional surcharge for all open access consumers including those sourcing power from CPPS as proposed for FY 2018-2019 to FY 2019-2020”. the State Commission passed the order holding that an additional surcharge is leviable under Section 42(4) of the Act, 2003 on the captive consumers/captive users. Aggrieved and dissatisfied. The respondents approached the Appellate Tribunal, which allowed the said appeals. Aggrieved the original appellate preferred the present appeal. The Hon’ble Supreme Court observed that consumers defined u/s 2(15) of the Act, 2003, and the captive consumers are different and distinct and they form a separate class by themselves. Additionally, the Hon’ble Supreme Court held that “In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.” Finally, the Hon’ble Supreme Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that a petition before the State Commission for MYT approval for FY 2014-2015, provisional truing up of ARR for FY 2015-2016, and Multi-Year Tariff for 3rd Control Period FY 2016-2017 to FY 2019-2020. The State Commission held that the additional surcharge leviable under Section 42(4) of the Electricity Act, 2003  is not applicable to captive users to the extent of their self-consumption from such plants. The appellant submitted its revised Review Petition being Case No.195 of 2017 for approval of final true-up of ARR for FY 2015-2016 and 2016-2017, provisional true-up of ARR for FY 2017-2018, and approval for a revised forecast of ARR for FY 2018-2019 and 2019-2020, inter alia, including the prayer “to approve additional surcharge for all open access consumers including those sourcing power from CPPS as proposed for FY 2018-2019 to FY 2019-2020”. the State Commission passed the order holding that an additional surcharge is leviable under Section 42(4) of the Act, 2003 on the captive consumers/captive users. Aggrieved and dissatisfied. The respondents approached the Appellate Tribunal, which allowed the said appeals. Aggrieved the original appellate preferred the present appeal. The Hon’ble Supreme Court observed that consumers defined u/s 2(15) of the Act, 2003, and the captive consumers are different and distinct and they form a separate class by themselves. Additionally, the Hon’ble Supreme Court held that “In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.” Finally, the Hon’ble Supreme Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that consumers defined u/s 2(15) of the Act, 2003, and the captive consumers are different and distinct and they form a separate class by themselves. Additionally, the Hon’ble Supreme Court held that “In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.” Finally, the Hon’ble Supreme Court dismissed the appeal. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court held that “In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.” Finally, the Hon’ble Supreme Court dismissed the appeal.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5074 5075 OF 2019 Maharashtra State Electricity Distribution Co. Ltd. ...Appellant(s M s. JSW Steel Limited & Ors ...Respondent(s JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Appellate Tribunal for Electricity Delhi in Appeal Nos. 311 and 3118 whereby the Appellate Tribunal has allowed the said appeals preferred by the respondents herein the ‘captive consumers’ and has set aside the order passed by the Maharashtra Electricity Regulatory Commissionin Petition No.1917 by which the State Commission has held that the group of ‘captive consumers’ are liable to pay additional surcharge Maharashtra State Electricity Distribution Company Limited has preferred the present appeals That the appellant as distribution licensee filed a petition before the State Commission for MYT approval for FY 2014 2015 provisional truing up of ARR for FY 2015 2016 and Multi Year Tariff for 3rd Control Period FY 2016 2017 to FY 2019 2020. The said petition was numbered as Case No.416. The State Commission held that the additional surcharge leviable under Section 42(4) of the Electricity Act 2003 hereinafter referred to as the “Act 2003”) is not applicable to captive users to the extent of their self consumption from such plants. The State Commission also held that the additional surcharge shall be applicable to all consumers who have availed open access to receive supply from sources other than the distribution licensee to which they are connected The appellant distribution licensee submitted its revised Review Petition being Case No.1917 for approval of final true up of ARR for FY 2015 2016 and 2016 2017 provisional true up of ARR for FY 2017 2018 and approval for revised forecast of ARR for FY 2018 2019 and 2019 2020 inter alia including the prayer “to approve additional surcharge for all open access consumers including those sourcing power from CPPS as proposed for FY 2018 2019 to FY 2019 2020”. The Captive Power Producers Association filed their objections including the objections with respect to levy of additional surcharge on such captive users. That by order dated 12.09.2018 the State Commission passed the order holding that additional surcharge is leviable under Section 42(4) of the Act 2003 on the captive consumers captive users. Feeling aggrieved and dissatisfied with the order passed by the State Commission allowing the levy of additional surcharge from the captive consumers captive users the respondents herein captive users captive consumers approached the Appellate Tribunal. By impugned order dated 27.03.2019 the Appellate Tribunal has allowed the said appeals and has set aside the order passed by the State Commission ordering permitting to levy the additional surcharge leviable under Section 42(4) of the Act 2003 and has held that the group of captive consumers are not liable to pay additional surcharge to the distribution licensee. Feeling aggrieved and dissatisfied with the impugned order passed by the Appellate Tribunal holding that the group of captive consumers captive users are not liable to pay the additional surcharge leviable under section 42(4) of the Act 2003 appellant distribution 6. We have heard the learned counsel appearing for the appellant distribution licensee as well as learned counsel appearing on behalf of the respective respondents intervenors the captive consumers captive users at length. The short question which is posed for the consideration of this “Whether the captive consumers captive users are liable to pay the additional surcharge leviable under Section 42(4) of the Electricity Court is Act 2003 8. While deciding the aforesaid issue question the relevant provisions of Electricity Act 2003 namely Sections 9 and 42 are required to be noted visited which reads as under: “9. Captive generation. Notwithstanding anything contained in this Act a person may construct maintain or operate a captive generating plant and dedicated Provided that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company Provided further that no licence shall be required under this Act for supply of electricity generated from a captive generating plant to any licencee in accordance with the provisions of this Act and the rules and regulations made thereunder and to any consumer subject to the regulations made under sub sectionof 2) Every person who has constructed a captive generating plant and maintains and operates such plant shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use Provided that such open access shall be subject to availability of adequate transmission facility and such availability of transmission facility shall be determined by the Central Transmission Utility or the State Transmission Utility as the case may be Provided further that any dispute regarding the availability of transmission facility shall be adjudicated upon by the Appropriate Commission 42. Duties of distribution licensees and open access. 1) It shall be the duty of a distribution licensee to develop and maintain an efficient co ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in 2) The State Commission shall introduce open access in such phases and subject to such conditions including the cross subsidies and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling it shall have due regard to all relevant factors including such cross subsidies and other Provided that such open access shall be allowed on payment of a surcharge in addition to the charges for wheeling as may be determined by the State Provided further that such surcharge shall be utilised to meet the requirements of current level of cross subsidy within the area of supply of the distribution Provided also that such surcharge and cross subsidies shall be progressively reduced in the manner as may be specified by the State Commission: Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use: Provided also that the State Commission shall not later than five years from the date of commencement of the Electricity Act 2003 by regulations provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one 3) Where any person whose premises are situated within the area of supply of a distribution licensee Where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply such consumer shall be liable to pay an additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. 5) Every distribution licensee shall within six months from the appointed date or date of grant of licence whichever is earlier establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State 6) Any consumer who is aggrieved by non redressal of his grievances under sub section may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission. 7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission. 8) The provisions of sub sections(6) andof Section 9. As per sub section every person who has constructed a captive generating plant and maintains and operates such plant shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use but of course subject to availability of adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility as the case may be. So the captive generation captive use is statutorily provided available and for which a permission of the State Commission is not required. The submission on behalf of the appellant that the captive generation under Section 9 is subject to the regulations as per first proviso to sub sectionof Section 9 and that even open access for the purpose of carrying electricity from his captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility as the case may be sub section of Section 42 shall be applicable and such captive users are liable to pay the additional surcharge leviable under sub section of section 42 has no substance and has to be rejected outright. Construction and or maintenance and operation of a captive generating plant and dedicated transmission lines is not subjected to any permission by the State Commission. As provided under Section 9 of the Act 2003 any person may construct maintain or operate a captive generating plant and dedicated transmission lines. Merely because the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility it cannot be said that for captive generation plant the State Commission’s permission is required. Right to open access to transmit carry electricity to the captive user is granted by the Act and is not subject to and does not require the Sate Commission’s permission. The right is conditioned by availability of transmission facility which aspect can be determined by the Central or State transmission utility. Only in case of dispute the State Commission may adjudicate. In light of the above observations and findings the issue whether such captive users are subject to levy of additional surcharge leviable under sub sectionof Section 42 is required to be considered. 11. Sub sectionof Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply and only such consumer shall be liable to pay additional surcharge on the charges of wheeling as may be specified by the State Commission. Captive user requires no such permission as he has statutory right. At this stage it is required to be noted that as per the Scheme of the Act there can be two classes of consumers the ordinary consumer or class of consumers who is supplied with electricity for his own use by a distribution licensee licensee and captive consumers who are permitted to generate for their own use as per Section 9 of the Act 2003. The term “consumer” is defined in Section 2(15) which reads as “(15) "consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee the Government or such other person as the case may be ” 13. Ordinarily a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply However with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply however subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and or eventuality because the distribution licensee has already incurred the expenditure entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply. Therefore the levy of additional surcharge under sub sectionof Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature However as observed hereinabove sub sectionof Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person distribution licensee of his area of supply So far as captive consumers captive users are concerned no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Therefore so far as the captive consumers captive users are concerned they are not liable to pay the additional surcharge under Section 42(4) of the Act 2003. In the case of the captive consumers captive users they have also to incur the expenditure and or invest the money for constructing maintaining or operating a captive generating plant and dedicated transmission lines. Therefore as such the Appellate Tribunal has rightly held that so far as the captive consumers captive users are concerned the additional surcharge under sub sectionof Section 42 of the Act 2003 shall not be leviable. 14. Even otherwise it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned they incur a huge expenditure invest a huge amount for the purpose of construction maintenance or operation of a captive generating plant and dedicated transmission lines. However so far as the consumers defined under Section 2(15) are concerned they as such are not to incur any expenditure and or invest any amount at all Therefore if the appellant is held to be right in submitting that even the captive consumers who are a separate class by themselves are subjected to levy of additional surcharge under Section 42(4) in that case it will be discriminatory and it can be said that unequals are treated equally. Therefore it is to be held that such captive consumers captive users who form a separate class other than the consumers defined under Section 2(15) of the Act 2003 shall not be subjected to and or liable to pay additional surcharge leviable under Section 42(4) of the Act 2003. In view of the above and for the reasons stated above the present appeals fail and deserve to be dismissed and are accordingly dismissed However in the facts and circumstances of the case there shall be no order as to costs It is reported that pursuant to the interim order passed by this Court dated 01.07.2019 staying the operation and implementation of the impugned order passed by the Appellate Tribunal the appellant distribution licensee has recovered the additional surcharge. Therefore as such once it is held that the captive consumers captive users are not liable to pay the additional surcharge leviable under Section 42(4) of the Act 2003 the appellant distribution licensee has to refund the same However considering the fact that there shall be huge liability on the appellant distribution license if they have to now refund the amount of additional surcharge recovered at a stretch we direct that the additional surcharge already recovered from the captive consumers captive users shall be adjusted in the future wheeling charges bills. 17. Present appeals are accordingly dismissed with the above observations. [M.R. SHAH NEW DELHI DECEMBER 10 2021 ….J [SANJIV KHANNA

If there is prima facie material to show meeting of mind and that, pursuant to it, a crime is committed, than it will be punishable under section 302 IPC read with 120B: Delhi High Court.

The Indian Penal Code is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. Section 120B of the IPC Act states   (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. The judgment was given by the High court of Delhi in the case of Nadir @Shah Alam vs. State of NCT of Delhi. Case no. [4111/2020] By the Hon’ble Ms. Justice Mukta Gupta. The counsel for petitioner was Mr.Samrat Nigam, Advocate and counsel for respondent represented by Mr.Amit Gupta, APP for State with SI Santosh Kumar, PS Mandawali. Mr.V.S.Dubey, Advocate for the complainant. The deceased who used to go for morning walk at DDA Park near Aditi Apartment, mandawali with society members. On the day of incident, the deceased was walking slightly faster than others and thus ahead of them. At that time two boys came near deceased and fired at him. The deceased ran toward the gate of the park where the two other boys also fired at him. Other member of society also came out and heard firing from apartment and saw that four boys firing and snatched motorcycle of one boy and all four of them sat on the said motorbike and ran away. The counsel for petitioner said that there is no legally admissible evidence against the petitioner with the prosecution in charge sheet filed against the petitioner. From search of petitioner no recovery has been made expect for his own mobile which had no connection with commission of the alleged offence. The counsel further said that in the entire charge sheet no motive has been attributed to the petitioner and the petitioner is in no manner connected with the commission of the alleged offence. The learned counsel stated that from CCTV footage, it was cleared that the petitioner were not present on alleged offence. And location of mobile phone of petitioner showing around the area of the alleged offense because the petitioner is a resident next colony which is around 1 Km. The counsel states that there is no material with the prosecution to even prima facie show that the petitioner was a part of the conspiracy. The counsel for state said that the petitioner is a co-conspirator in the incident which resulted in the cold blooded murder of one Rahul Singh with gunshots fired on him. The counsel for respondent stated that the deceased had previous enmity with the co-conspirator Kartar Bhati and the mobile phone of the petitioner shows his connection with the other accused, who committed the offence of murder of Rahul Singh and was thus a part of the conspiracy. The counsel further said that the petitioner along with his friend try to murder deceased but fortunately saved and in this regard a FIR was also registered. And prior to the incident, the nephew of petitioner came to house of deceased and asked him to withdraw his case otherwise it would not be good for him. Further counsel stated that the role assigned to the petitioner is that at the instance of the main accused, petitioner along with Nafees Ahmed provided the funds to execute the murder of Rahul Singh @ Bhuru and conducted recce of the area in the morning where Rahul Singh @ Bhuru was present as also identified Rahul Singh on the day of incident.   The court after analyzing the facts and circumstance and after hearing the both counsel, said that, according to the evidence collected, the petitioner is a neighbor of co-accused Nafeesh Ahmed and Nafees Ahmed is an associate of accused Kartar Bhati since 2004 who is involved in number of cases and is on the list of gangsters of Uttar Pradesh Police. The version in the disclosure statement was confirmed from the CDR analysis of the petitioner which showed that the petitioner had spoken to Sachin Bhati two months prior to the incident and one of his locations also reveals that he had gone to village of Sachin Bhati and Sumit. Further on 1st June, 2020 from 9.00 AM to 12.00 Noon the petitioner was in the vicinity of the house of the deceased. Even on the day of incident at about 9.00 AM the petitioner was near the place of incident. Even though the place where the petitioner resides is at a distance of three kilometers, the analysis of the phone call record reveals that the cell tower of the petitioner’s residence and that of the deceased were different so as to pinpoint his location near the place of incident at 9.00 AM on 3rd June, 2020. “In a case of conspiracy, every accused may not be present at the spot however, if there is prima facie material to show meeting of mind and that pursuant thereto, an offence is committed, the petitioner would also be liable for the offence punishable under Section 302 IPC read with 120B IPC”. At this stage when the material witnesses are yet to be examined, considering the seriousness of the offence this Court is not inclined to grant bail to the petitioner.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17th August 2021 Decided on: 24th August 2021 BAIL APPLN. 4111 2020 NADIR@SHAH ALAM Represented by: Mr.Samrat Nigam Advocate. Petitioner STATE OF NCT OF DELHI Respondent Represented by: Mr.Amit Gupta APP for State with SI Santosh Kumar PS Mandawali. Mr.V.S.Dubey Advocate for the complainant. HON BLE MS. JUSTICE MUKTA GUPTA By this petition petitioner seeks regular bail in case FIR No.247 2020 under Sections 302 392 397 120B 34 IPC and Sections 25 27 Arms Act registered at PS Mandawali Delhi. Learned counsel for the petitioner states that the petitioner was arrested in the above noted FIR on 14th June 2020 and from that day he is in custody. There is no legally admissible evidence against the petitioner with the prosecution in the charge sheet filed against the petitioner. No recovery has been made from the petitioner except for his own mobile phone which has no connection with the commission of the alleged offence. In the entire charge sheet no motive has been attributed to the petitioner and the petitioner is in no manner connected with the commission of the alleged offence. The allegation that the petitioner did recce of the area where subsequently the other accused committed the alleged offence is based on BAIL APPLN. 4111 2020 the disclosure statement leading to no recovery and hence is not admissible in evidence. Despite the fact in the entire area there may be CCTV cameras which could capture the petitioner doing the recce on the date of incident however no CCTV footages have been relied upon. Location of the petitioner’s mobile phone around the area of alleged offence inconsequential for the reason the petitioner is a resident of Joshi Colony which is around three kilometres away from the place of incident and his location would be at that place. There is no material with the prosecution to even prima facie show that the petitioner was a part of the conspiracy. It is further stated that the prosecution wrongly relies upon the two involvements of the petitioner for the reason in one of the cases the petitioner has already been acquitted. Petitioner is the sole bread earner of the family consisting of his wife and one girl child aged two years old and undertakes to abide by any condition imposed by this Court while granting bail. Learned APP for the State on the other hand contends that the petitioner is a co conspirator in the above mentioned FIR which resulted in the cold blooded murder of one Rahul Singh with gunshots fired on him. The deceased had previous enmity with the co conspirator Kartar Bhati and the mobile phone of the petitioner shows his connection with the other accused who committed the offence of murder of Rahul Singh and was thus a part of the conspiracy. Since material witnesses are yet to be examined the petitioner be not granted bail. Further petitioner has two other involvements. The above noted FIR was registered pursuant to a PCR call received at PS Mandawali on 3rd June 2020 and recorded vide DD No.12A. On reaching the spot the Investigating Officer found one Rahul Singh lying in a BAIL APPLN. 4111 2020 Apartment. pool of blood with bullet injuries and empty cartridges in the Aditi Statement of Kartar Singh brother of Rahul Singh was recorded on 3rd June 2020 itself who stated that on receiving the information he immediately reached the place where his brother was lying on the floor with blood oozing out. In the meantime a police vehicle came and he took his brother to Max Hospital in the PCR van. According to Kartar Singh his brother Rahul Nagar was a social worker and is brother had number of times stopped Kartar Bhati who used to earlier stay near their place and was now staying in Noida Uttar Pradesh due which there was an altercation between Rahul Nagar and Kartar Bhati in November 2019 whereafter Kartar Bhati with Sumit had attempted to murder his brother but his brother was fortunately saved and in this regard a FIR was registered. He further stated that 15 20 days prior to the incident his brother Rahul Singh @ Bhuru told him that Kartar Bhati’s nephew Sachin had come to his house along with one more boy asking him to withdraw his case otherwise it would not be good. He expressed his apprehension on Kartar Bhati his nephew Sachin Bhati and their associates for the murder of his brother while he was on morning walk. Similar statement of Satish Singh the other brother of Rahul Singh @ Bhuru was also recorded who also expressed his suspicion on Kartar Bhati his nephew Sumit Bhati and their associates in view of the earlier attempt to murder in November 2019 and the threat extended to his brother for withdrawing the case. On technical surveillance being kept two accused namely Abhishek and Rinku were arrested who disclosed that they were residents of Uttar BAIL APPLN. 4111 2020 Pradesh and along with other accused namely Sachin Bhati Sumit Vipin Nagar Kartar Bhati had planned to kill Rahul @ Bhuru. It was their case that on the directions of Kartar Bhati and Sachin Bhati they met the present petitioner that is Nadir @ Shah Alam and Nafees who were financed and thus they provided local support. As per the status report Kartar Bhati is previously involved in number of cases and he along with co accused Sumit were previously involved in a case of attempt to murder of Rahul Singh @ Bhuru for which FIR No.384 2019 was registered. Kartar Bhati was arrested in FIR No.384 2019 however Sumit could not be arrested in the said FIR and was evading his arrest. Sachin Bhati is the nephew of Kartar Bhati. Statements of the eye witnesses at the time of incident have also been recorded including Puran Chand who was a guard at Aditi Apartment who stated that he was on duty from 2nd June 2020 at 8.00 PM to 8.00 AM on 3rd June 2020 along with Prem Singh. At about 7.15 to 7.30 AM he opened the gate for a car to enter the apartment. One person entered the apartment and after him four other boys also came who had pistols in their hands. All the four boys went towards the parking and fired at a person who fell down and the four boys firing in the air left the apartment. According to him all of this happened so hurriedly that he could not realise what to do. In the meantime people from the apartment gathered and they called 100 number. Similar statement of Prem Singh Negi the other guard was also recorded. Statement of one Satish Sharma was also recorded who stated that he along with Arun Tiwari Rahul Kashyap Rahul Nagar @ Bhuru who reside in one colony used to go for morning walk at DDA park near Aditi Apartment Mandawali. On the day of incident he called up Rahul Kashyap BAIL APPLN. 4111 2020 who stated that he would not come for the morning walk as he was unwell and when he called Rahul Nagar @ Bhuru he stated that he would just come. Rahul was walking slightly faster than Satish Sharma and was thus ahead of him. At that time two boys came near Rahul and fired at him. Rahul @ Bhuru ran towards the gate of the park where the two other boys also fired at Rahul and Rahul came out of the park. Satish Sharma also came out and heard firings from Aditi Apartment and saw that four boys firing came out of Aditi Apartment and snatched motorcycle of one boy and all four of them sat on the said motorbike and ran away. 10. The role assigned to the petitioner is that at the instance of the main accused petitioner along with Nafees Ahmed provided the funds to execute the murder of Rahul Singh @ Bhuru and conducted recce of the area in the morning where Rahul Singh @ Bhuru was present as also identified Rahul Singh on the day of incident. According to the evidence collected the petitioner is a neighbour of co accused Nafeesh Ahmed and Nafees Ahmed is an associate of accused Kartar Bhati since 2004 who is involved in number of cases and is on the list of gangsters of Uttar Pradesh Police. The version in the disclosure statement was confirmed from the CDR analysis of the petitioner which showed that the petitioner had spoken to Sachin Bhati two months prior to the incident and one of his locations also reveals that he had gone to village of Sachin Bhati and Sumit. 11. Murder of Rahul Singh @ Bhuru took place at about 7.30 AM on 3rd June 2020. This Court had called for a report of the analysis of mobile phone location of the petitioner which reveals that the petitioner had gone to the hometown of Sachin Bhati and Sumit on 24th April 2020 and 25th April 2020 on which date he had also made a phone call to Sachin Bhati. Further BAIL APPLN. 4111 2020 on 1st June 2020 from 9.00 AM to 12.00 Noon the petitioner was in the vicinity of the house of the deceased. Even on the day of incident at about 9.00 AM the petitioner was near the place of incident. Even though the place where the petitioner resides is at a distance of three kilometres the analysis of the phone call record reveals that the cell tower of the petitioner’s residence and that of the deceased were different so as to pinpoint his location near the place of incident at 9.00 AM on 3rd June 2020. There are number of calls between the petitioner and Nafees who is an associate of Kartar Bhati. 12. During the investigation the two boys who fired at the gate were identified as Abhishek and Vipin and Sachin and Sumit fired inside the park. Sachin being one of the assailants and from the mobile phone records it is evident that the petitioner made a phone call to Sachin and also visited his place prior to the incident. In a case of conspiracy every accused may not be present at the spot however if there is prima facie material to show meeting of mind and that pursuant thereto an offence is committed the petitioner would also be liable for the offence punishable under Section 302 IPC read with 120B IPC. 13. Sachin Bhati having been identified as one of the assailants who committed the murder and who also threatened the deceased of dire consequences around 15 20 days prior to the incident in case he did not withdraw the earlier FIR lodged by him and the fact that the petitioner was in touch with Sachin Bhati both on phone and also by physically going to his village at this stage when the material witnesses are yet to be examined considering the seriousness of the offence this Court is not inclined to grant bail to the petitioner. BAIL APPLN. 4111 2020 14. Petition is dismissed. 15. Order be uploaded on the website of the Court. AUGUST 24 2021 MUKTA GUPTA) BAIL APPLN. 4111 2020

No impeding right of guardian to interfere if marriage is in conformity with the Personal Laws: Punjab and Haryana High Court

The present matter before the Punjab High Court involves a criminal Writ Petition under Article 226/227 of the Constitution of India for issuing a writ in the nature of mandamus directing respondent Nos.2 and 3, specifically the State authorities to protect the life and liberty of the petitioners at the hands of private respondent Nos.4 to 6. The bench of Sudip Ahluwalia J. encountered the tenets of Mohmeddan law in respect of matrimony wherein the marriage of the petitioners stood threatened in Aasma v State of Haryana [CRWP-1148-2021]. In the present case, both the petitioners are Muslims by religion. They fell in love and decided to perform Nikah. The date of birth of petitioner No.1 is 27.07.2004 and that of petitioner No.2 is 13.09.1996 as per their Aadhar Cards, respectively. Both the petitioners have solemnized their Nikah on 21.01.2021 as per Muslim rites and ceremonies. It was contended on behalf of the petitioners that this was the first marriage of both the petitioners. Further reliance was placed upon the decisions by this Court in Kammu vs. State of Haryana & Ors [2010(4) RCR (Civil) 716]; Yunus Khan vs. State of Haryana & Ors. [2014(3) RCR (Criminal) 518] and Mohd. Samim vs. State of Haryana & Ors.[2019 (1) RCR (Criminal) 685] to contend that in Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years. It was further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere. The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the petitioner No.1 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 36 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law. In any event, the issue in hand is not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by law. The Court opined that it cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India. The court in light of the above discussion, sounded judgment that, “Without expressing any opinion with regard to the veracity of the contents of the petition and the submissions made by learned counsel for the petitioners, the present petition is disposed of with a direction to the Superintendent of Police, Yamuna Nagar, District Yamuna Nagar (Haryana) (respondent No.2) to decide the representation of the petitioners dated 01.02.2021 (Annexure P-5) and take necessary action as per law.”

on 03 05 CRWP 1148 2021 1 113IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRWP 1148 2021Date of Decision: 29.04.2021 Aasma and another..... PetitionersVersusState of Haryana and others..... RespondentsCORAM: HON BLE MR. JUSTICE SUDIP AHLUWALIAPresent:Mr. Sanchit Punia Advocate for the petitioners.SUDIP AHLUWALIA J.RCR on 03 05 CRWP 1148 2021 2716] “Yunus Khan vs. State of Haryana & Ors.”RCR(Criminal) 518] and “Mohd. Samim vs. State of Haryana & Ors.”RCR685] to contend that in Muslim law puberty andmajority are one and the same and that there is a presumption that a personattains majority at the age of 15 years. It is further contented that a Muslimboy or Muslim girl who has attained puberty is at liberty to marry any onehe or she likes and the guardian has no right to interfere. 4.Learned counsel for the petitioners would further contend thatthe life and liberty of the petitioners is in grave danger at the hands ofrespondent Nos.4 to 6. It is further contended that the petitioners have alsomoved a representation dated 01.02.2021to theSuperintendent of Police Yamuna Nagar District Yamuna Nagarin a time bound manner inaccordance with law. 5.Notice of motion. 6.On the asking of the Court Mr. Karan Sharma AAG Haryanahas joined the session through video conferencing and accepts notice onbehalf of respondent Nos.1 to 3. 7.Heard learned counsel for the parties. 8.This Court has taken note of the judgments cited on behalf ofthe petitioners and also the fact that the girl in the instant case i.e. petitionerNo.1 is aged more than 16 years. In the case of Yunus Khanit has on 03 05 CRWP 1148 2021 3 been noted that the marriage of a Muslim girl is governed by the personallaw of the Muslims. Article 195 from the book ‘Principles of MohammedanLaw by Sir Dinshah Fardunji Mulla’ has also been reproduced in the saiddecision which Article reads as under : “195. Capacity for marriage Every Mahomedan ofsound mind who has attained puberty may enter into acontract of marriage.Lunatics and minors who have not attained pubertymay be validly contracted in marriage by theirrespective guardians.A marriage of a Mahomedan who is sound mind andhas attained puberty is void if it is brought aboutwithout his consent. Explanation Puberty is presumed in the absence of evidence on completion of the age offifteen years.” 9.The law as laid down in various judgments cited above is clearthat the marriage of a Muslim girl is governed by the Muslim Personal Law.As per Article 195 from the book ‘Principles of Mohammedan Law by SirDinshah Fardunji Mulla’ the petitioner No.1 being over 16 years of age wascompetent to enter into a contract of marriage with a person of her choice.Petitioner No.1 is stated to be more than 36 years of age. Thus both thepetitioners are of marriageable age as envisaged by Muslim Personal Law.In any event the issue in hand is not with regard to the validity of themarriage but to address the apprehension raised by the petitioners of dangerto their life and liberty at the hands of the private respondents and toprovide them protection as envisaged under Article 21 of the Constitution ofIndia. Article 21 of the Constitution of India provides for protection of lifeand personal liberty and further lays down that no person shall be deprived on 03 05 CRWP 1148 2021 4 of his or her life and personal liberty except as per the procedure establishedby law. The Court cannot shut its eyes to the fact that the apprehension ofthe petitioners needs to be addressed. Merely because the petitioners havegot married against the wishes of their family members they cannotpossibly be deprived of the fundamental rights as envisaged in theConstitution of India. 10.In view of the above discussion and without expressing anyopinion with regard to the veracity of the contents of the petition and thesubmissions made by learned counsel for the petitioners the present petitionis disposed off with a direction to the Superintendent of Police YamunaNagar District Yamuna Nagar(respondent No.2) to decide therepresentation of the petitioners dated 01.02.2021and takenecessary action as per law. 11. This order would not ipso facto amount to grant any seal ofapproval on the legality of petitioners marriage which essentially wouldcome in the domain of the concerned Matrimonial Courts. Further theywould not be entitled for any protection against their arrest or continuanceof any criminal proceedings if otherwise found to be involved incommission of any cognizable offence(s). 12.The petition is disposed off with the above direction. (SUDIP AHLUWALIA)29.04.2021 JUDGEBhumika Jitesh (JTS)1. Whether speaking reasoned:Yes2. Whether reportable:No

“Motor Vehicle” includes any mechanically propelled vehicle apt for use upon roads irrespective of it’s power source. : Jammu & Kashmir High Court

Section 10(2)(a) to (j) specifies the classifications of vehicles that must be driven, not the precise types of vehicles within each class. If a vehicle falls into one of the categories, a person who holds a driver’s licence for that class of vehicle can operate all vehicles in that category. If the vehicle falls under one of section 10(2) specific classes, no additional endorsement is required, this was referred by Justice Vinod Chaterji Koul in the matter of National Insurance Co. Ltd. versus Aijaz Ahmad Shah and ors [Mac. App. No. 49/2020] This order was passed when respondents 1 to 4 filed a claim petition with the Tribunal on 01.09.2015, averring that deceased Aksa Aijaz, aged 14 years, died in an accident on 09.08.2015 at Manzhama K.P. Road, Anantnag, due to the rash and negligent driving of the driver of the offending vehicle, bearing Registration no.JK01G-2177 (Tata Swaraj Mazda), which was parked on the side of the road. Before the Tribunal, the Appellant Insurance Company fought the claim petition. Their argument was that the driver of the offending car did not have a valid and effective driver’s licence and that the vehicle was being driven without valid and effective vehicular documentation. The accident was also said to be the result of two cars colliding, as the deceased was driving the bus when it crashed with the offending vehicle. The duty to satisfy the Award has been erroneously mulcted upon appellant Insurance Company, according to learned counsel for appellant Insurance Company. Appellant Insurance Company was, without a doubt, the insurer of the offending car, but under the provisions of the insurance contract, appellant Insurance Company’s liability would arise only if the owner/insured did not violate the policy’s terms and conditions. The owner/insured – respondent no.6, in this case, is said to have allowed the offending car to be driven by respondent no.5, who had an invalid driver’s licence, and so liability should have been placed on the owner of the offending vehicle. It is argued that the decision on Issue No. 3 is erroneous in law because the Tribunal failed to consider the fact that respondent No. 5 as the driver of the offending vehicle was only licenced to operate a light commercial vehicle (LMV) and not a medium passenger vehicle. The light motor vehicle is not included in the definition of a medium passenger motor vehicle, hence the driver was not authorised to drive a medium passenger motor vehicle. According to learned counsel, the Tribunal, while relying on the Supreme Court’s decision in Mukund Dewangan v. Oriental Insurance Company Limited, held that a person with a light motor vehicle licence can drive any type of light motor vehicle without a PSV endorsement. In view of the above-reproduced excerpt of the judgement in Mukund Dewangan (supra), there is no substance in the submission of learned counsel for appellant qua validity of the driving licence of the offending vehicle. Thus, the Tribunal has rightly decided Issue no.3 against the appellant Insurance Company. 

Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 Jammu & Kashmir High Court Srinagar Bench Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Mac. App. No. 49 2020 CM no. 3774 2020 Reserved on: 23.04.2021 Pronounced on: 22.06.2021 National Insurance Co. Ltd .........Appellant(s Through: Mr. Nissar Ahmad Dendru Advocate Versus Aijaz Ahmad Shah and Others ......Respondent(s Through: Mr. Shuja ul Haq Advocate HON BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE JUDGEMENT 1. Impugned in this Appeal is Award dated 06.10.2018 passed by Motor Accident Claims Tribunal Anantnagon a Claim petition bearing File no. 42 Claim titled Aijaz Ahmad Shah and others v. Ashraf Ali Dar and others directing appellant Insurance Company to pay compensation in the amount of Rs. 11 30 010 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein 2. A claim petition as is discernible from perusal of the file was filed by respondents 1 to 4 before the Tribunal on 01.09.2015 averring therein that deceased Aksa Aijaz aged 14 years died in an accident which took place on 09.08.2015 at Manzhama K.P. Road Anantnag due to rash and negligent driving of driver of offending vehicle bearing Registration no.JK01G 2177which was insured with appellant Insurance Company Claimants Respondents 1 to 4 in their claim petition prayed for grant of compensation in the amount of Rs.1.00 Crore 3. Appellant Insurance Company resisted the claim petition before the Tribunal. Their stand was that driver of offending vehicle was not Mac. App. No. 49 2020 holding valid and effective driving licence and vehicle was being plied without valid and effective vehicular documents. It was also stated that accident was outcome of two vehicles as deceased was driving the bus and collided with 4. The Tribunal in view of pleadings of parties framed Issues for determination which are 1) Whether on 09.08.2015 the deceased namely Aksa Aijaz while boarding a vehicle Tata 407 at Mazhama K.P. Road was hit by the offending vehiclebearing registration No. JK01G 2177 driven rashly and negligently by respondent No.1 causing critical injuries to the deceased who succumbed to her Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 injuries at Jaglatmandi Hospital OPP 2) In case issue No.1 is decided in affirmative then whether petitioners are entitled for compensation if so to what extent and from whom OPP 3) Whether respondent No.1 i.e. driver of the offending vehicle was not having valid and effective D L and owner knowing about it had engaged and permitted him to ply the offending vehicle and thereby committed breach of policy conditions OPR3 5. Claimants in support of their claim before the Tribunal produced and examined four witnesses besides claimant respondent no.1. Appellant Insurance Company did not produce any witness in rebuttal to claim of claimants. By virtue of impugned Award the Tribunal found claimants entitled to compensation in the amount Rs.11 30 010 along with 6% interest per annum from the date of institution of claim till realization. This is how the instant Appeal has come up before this Court 6. According to learned counsel for appellant Insurance Company liability to satisfy the Award has been wrongly mulcted upon appellant. Appellant Insurance Company no doubt was insurer of offending vehicle but as per contract of insurance liability of appellant Insurance Company would arise only when owner insured would not commit any breach of terms and conditions of policy of insurance. The owner insured respondent no.6 herein is stated to have allowed offending vehicle to be plied by respondent no.5 who was having invalid driving licence to drive offending vehicle and therefore liability ought to have been fastened upon owner of offending vehicle. It is contended that finding on Issue no.3 is bad in law as Tribunal has not taken into account the fact that respondent no.5 as driver of offending vehicle was Mac. App. No. 49 2020 having authorization to drive only LMVand not a medium passenger motor vehicle. The medium passenger motor vehicle excludes within its definition the light motor vehicle and thus driver was not authorized to drive a medium passenger motor vehicle. Learned counsel also avers that the Tribunal while relaying upon the judgment of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited4 SCC 298 holding that a person having light motor vehicle authorization can drive any sort of light motor vehicle and no PSV endorsement is required in the said driving licence is incorrect 7. The above contentions of learned counsel for appellant Insurance Company when examined in the context of impugned Award more particularly when the Tribunal while deliberating upon and deciding Issue no.3 has taken care of all the aspects of the matter that were required to be looked into by it while rendering the Award 8. It is pertinent to mention here that the Supreme Court in National Insurance Company limited v Annappa Irappa Nesara 2008 AIR SC Weekly 906 has been held that a driver who has a valid licence to drive a light motor vehicle can drive light goods vehicle as well. The similar view has also been reiterated and followed by this Court in National Insurance Company v. Rameez Ahmad 2015 1) SLJ 45 . That apart the Supreme Court in Mukund Dewangan has held that Light Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 1994. A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a road roller unladen weight of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or Mac. App. No. 49 2020 road roller the "unladen weight" of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form. The effect of the amendment made by virtue of Act No 54 1994 w.e.f. 14 th November 1994 while substituting clausestoof section 10(2) which contained "medium goods vehicle" in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect. The relevant portion of the judgement is reproduced hereunder 43. Section 10(2)tolays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashettythat in case submission to the contrary is accepted then every time an owner of a private car who has a licence to drive a light motor vehicle attaches a roof carrier to his car or a trailer to his car and carries goods thereon the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion even if such a vehicle is treated as transport vehicle of the light motor vehicle class legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class whether it Mac. App. No. 49 2020 is a transport vehicle or a private car tractor attached with trolley or used for carrying goods in the form of transport vehicle The ultimate conclusion in Nagashettyis correct however for the reasons as explained by Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors.7 SCC 364 this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus: "Section 2(28) is a comprehensive definition of the words "motor vehicle". Although a "trailer" is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle it is still included in the definition of the words "motor vehicle" under Section 2(28). Similarly the word "tractor" is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore the words "motor vehicle" have been defined in the comprehensive sense by the legislature Therefore we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles transport vehicles etc. A combined reading of the aforestated definitions under Section 2 reproduced hereinabove shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore even though a trailer is drawn by a motor vehicle it by itself is a motor vehicle the tractor trailer would constitute a "goods carriage" under Section 2(14) and consequently a "transport vehicle" under Section 2(47 The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods it can be stated that it is adapted for the carriage of goods. Applying the above test we are of the view that the tractor trailer in the present case falls under Section 2(14) as a goods carriage" and consequently it falls under the definition of "transport vehicle" under Section 2(47) of the MV Act 1988 There is no dispute with the aforesaid proposition that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer trolley carrying goods. The driver had the competence to drive such a vehicle tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore the decision renders no help with the cause espoused by the insurer 45. Transport vehicle has been defined in section 2(47) of the Act to mean a public service vehicle a goods carriage an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab a motor cab contract carriage and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods or any Mac. App. No 49 2020 motor vehicle not so constructed or adapted when used for the carriage of goods Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use who is driving a similar vehicle which is registered or insured for the purpose of carrying passengers for hire or reward would not require an endorsement as to drive a transport vehicle as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act and the Amendment Act 46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles there may be different kinds of vehicles. If they fall in the same class of vehicles no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre amended position as well the post amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d) Rule 8 of the Rules of 1989 other provisions and also the forms which are in tune with the provisions Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles and for light motor vehicle the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 59 10(2)(e) of the Act Transport Vehicle would include medium goods vehicle medium passenger motor vehicle heavy goods vehicle heavy passenger motor vehicle which earlier found place in section 10(2)(e) toand our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act ii) A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller unladen weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road roller the "unladen weight" of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form Indian Kanoon Reserved On: 23.04.202 vs Aijaz Ahmad Shah And Others on 22 June 2021 iii) The effect of the amendment made by virtue of Act No.54 1994 w.e.f. 14.11.1994 while substituting clausestoof section 10(2) which contained "medium goods vehicle" in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle Mac. App. No. 49 2020 from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect 9. In view of the above reproduced excerpt of the judgement in Mukund Dewanganthere is no substance in the submission of learned counsel for appellant qua validity of driving licence of offending vehicle. Thus the Tribunal has rightly decided Issue no.3 against appellant Insurance 10. Contention of learned counsel for appellant qua quantum of compensation and computation thereof that is also misconceived inasmuch as the Tribunal has been conservative in computing the compensation and also in view of law laid down by the Supreme Court in catena of cases including National Insurance Company v. Pranay Sethi AIR 2017 SC 5157 Arvind Kumar Mishra v. New India Assurance Co. Ltd. 10 SCC 254 and M. R. Krishna Murthi Vs. The New India Assurance Company Ltd. & Others 1 ACC 730Judge Srinagar 22.06.2021 Imtiyaz Whether the order is reportable: Yes No IMTIYAZ UL GANI 2021.06.27 21:51 I attest to the accuracy and integrity of this document Indian Kanoon

The Petition got dismissed and found non-maintainable under Section 76(2) of the Act and accordingly the bail application was denied: High Court Of Patna

Petitioner alleged of having in possession 234 Litres of Alcohol taken into custody for violation of Bihar Prohibition and Excise Act 2016. The Court denied the bail application and found it non-maintainable in the court of law. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Ajeet Kumar Yadav v. The State of Bihar[Criminal Miscellaneous No. 36575 of 2020]. The facts of the case were that the petitioner was apprehended arrest in connection with a Case, instituted under Sections 272 and 273 of the Indian Penal Code and 30(a) and 41(i) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the ‘Act’). The petitioner is accused of having 234 litres of liquor retrieved from the joint house of his and his brother near the stairway.  The petitioner’s learned counsel argued that, while the accusation states that the recovery is from the petitioner and his brother’s residence, the seizure list shows that the recovery is from his brother’s house, who is also a co-accused, and not the petitioner’s. The petitioner and his brother are separate, according to learned counsel, because there has been a split between them, and the location from which recovery has been made belongs to the co-accused. It was further stated that the petitioner had no criminal history.  It was argued by Additional Public Prosecutor that the petitioner’s full brother has confessed and stated that he and the petitioner were both in the liquor business together, and that the recovery is from the petitioner and his brother’s joint house, and that the distinction of the location from which it was recovered belonging to the other co-accused is irrelevant. Due to the bar of Section 76(2) of the Act, the counsel argued that the present application under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the allegation that liquor was recovered from the petitioner’s premises.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP.” The application was hence dismissed. Click here to read The Judgment Judgment Reviewed by Nimisha Dublish The facts of the case were that the petitioner was apprehended arrest in connection with a Case, instituted under Sections 272 and 273 of the Indian Penal Code and 30(a) and 41(i) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the ‘Act’). The petitioner is accused of having 234 litres of liquor retrieved from the joint house of his and his brother near the stairway.  The petitioner’s learned counsel argued that, while the accusation states that the recovery is from the petitioner and his brother’s residence, the seizure list shows that the recovery is from his brother’s house, who is also a co-accused, and not the petitioner’s. The petitioner and his brother are separate, according to learned counsel, because there has been a split between them, and the location from which recovery has been made belongs to the co-accused. It was further stated that the petitioner had no criminal history.  It was argued by Additional Public Prosecutor that the petitioner’s full brother has confessed and stated that he and the petitioner were both in the liquor business together, and that the recovery is from the petitioner and his brother’s joint house, and that the distinction of the location from which it was recovered belonging to the other co-accused is irrelevant. Due to the bar of Section 76(2) of the Act, the counsel argued that the present application under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the allegation that liquor was recovered from the petitioner’s premises.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP.” The application was hence dismissed. Click here to read The Judgment Judgment Reviewed by Nimisha Dublish The petitioner’s learned counsel argued that, while the accusation states that the recovery is from the petitioner and his brother’s residence, the seizure list shows that the recovery is from his brother’s house, who is also a co-accused, and not the petitioner’s. The petitioner and his brother are separate, according to learned counsel, because there has been a split between them, and the location from which recovery has been made belongs to the co-accused. It was further stated that the petitioner had no criminal history.  It was argued by Additional Public Prosecutor that the petitioner’s full brother has confessed and stated that he and the petitioner were both in the liquor business together, and that the recovery is from the petitioner and his brother’s joint house, and that the distinction of the location from which it was recovered belonging to the other co-accused is irrelevant. Due to the bar of Section 76(2) of the Act, the counsel argued that the present application under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the allegation that liquor was recovered from the petitioner’s premises.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP.” The application was hence dismissed. Click here to read The Judgment Judgment Reviewed by Nimisha Dublish It was argued by Additional Public Prosecutor that the petitioner’s full brother has confessed and stated that he and the petitioner were both in the liquor business together, and that the recovery is from the petitioner and his brother’s joint house, and that the distinction of the location from which it was recovered belonging to the other co-accused is irrelevant. Due to the bar of Section 76(2) of the Act, the counsel argued that the present application under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the allegation that liquor was recovered from the petitioner’s premises.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP.” The application was hence dismissed. Click here to read The Judgment Judgment Reviewed by Nimisha Dublish The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP.” The application was hence dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 365720 Arising Out of PS Case No. 148 Year 2020 Thana HUSSAINGANJ District Siwan Ajeet Kumar Yadav @ Ajeet Kumar Yadav Gender Male aged about 24 years Son of Late Yogendra Yadav @ Yogendra @ Pahlawan Resident of Village Gosopali PS Hussainganj District Siwan The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Javed Aslam Advocate Mr. Md. Aslam Ansari APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 29 06 2021 The matter has been heard via video conferencing 2. Heard Mr. Javed Aslam learned counsel for the petitioner and Mr. Md. Aslam Ansari learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Hussainganj PS Case No. 420 dated 10.06.2020 instituted under Sections 272 and 273 of the Indian Penal Code and 30(a and 41(i) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’). 4. The allegation against the petitioner is that from the joint house of his and his brother 234 litres of liquor was recovered from near the staircase. Patna High Court CR. MISC. No.365720 dt.29 06 2021 5. Learned counsel for the petitioner submitted that though as per the allegation the recovery is from the house of the petitioner and his brother but in the seizure list it has been shown that the recovery is from the house of his brother who is also co accused and not the petitioner. Learned counsel submitted that the petitioner and his brother are separate as there has been partition between them and the place from where recovery has been made belongs to his brother i.e. co accused Sanjeet Kumar Yadav. It was further submitted that the petitioner has no criminal 6. Learned APP submitted that the full brother of the petitioner has confessed and has also stated that both him and the petitioner were together in the business of liquor and most importantly the recovery is from the joint house of the petitioner and his brother and thus such distinction of the place from which it has been recovered belonging to the other co accused is of no significance. It was further submitted that in the seizure list as the house was joint the name of only the brother has been mentioned but that would not mean that the recovery was not from the house of the petitioner also as the house was jointly owned by both the accused persons. Learned counsel submitted that in view of the allegation that recovery of liquor is from the house which also Patna High Court CR. MISC. No.365720 dt.29 06 2021 belonged to the petitioner the present application under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. 8. Accordingly the application stands dismissed both on merits as also on the ground of non maintainability (Ahsanuddin Amanullah J

The petitioner alleged of killing and concealing the facts and death of the deceased denied bail along with his parents: High Court of Patna

Alleged of killing the deceased the petitioner was accused of demanding dowry as well. The petitioner being the guardian of the deceased tried to conceal the facts and save their son. These formed sufficient grounds for not granting the pre-arrest bail by the Court. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Rajdevo Mahto and Others v. The State of Bihar[Criminal Miscellaneous No. 36545 of 2020].  The facts of the case were that the petitioner was apprehended arrest under Section 304B, 201/34 of the Indian penal Code. For the non-fulfillment of the Demands made by the Father-in-Law and Mother-In-Law, they are accused of killing the deceased. Learned counsel for the petitioners submitted that they are the father-in-law and mother-in-law and were separate from their son i.e., the husband of the deceased. It was further submitted that the husband of the deceased is in custody. When the Court specifically asked learned counsel for the petitioners whether the son was residing in a separate house at this point, he did not respond. When asked why the body of a young woman who died in the matrimonial house where the petitioners also lived was cremated without telling her relatives or the police, and what the cause of death was, counsel, once again, had no explanation. Even learned counsel was unable to respond to the Court’s question on what it meant for the petitioners to be separated from their kid and whether he was living in a separate house. There was no information on the cause of death or why relatives were not told.  The Additional Public Prosecutor submitted that the laws being the guardian of the house and deceased didn’t inform anyone about the mishap itself gives the hint of them being a party to the crime and even if the same was done by their son, they are liable for concealing death and facts for protecting their son.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the submissions of learned APP. The petitioners being father-in-law and mother-in-law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further, that what was the cause of death for a young girl, who died within seven years of marriage, the Court, upon due consideration, is not inclined to grant pre-arrest bail to the petitioners.” the petitioners were denied bail and matter was disposed of on the mentioned terms. Click here To Read The Judgment Judgment Reviewed By Nimisha Dublish Learned counsel for the petitioners submitted that they are the father-in-law and mother-in-law and were separate from their son i.e., the husband of the deceased. It was further submitted that the husband of the deceased is in custody. When the Court specifically asked learned counsel for the petitioners whether the son was residing in a separate house at this point, he did not respond. When asked why the body of a young woman who died in the matrimonial house where the petitioners also lived was cremated without telling her relatives or the police, and what the cause of death was, counsel, once again, had no explanation. Even learned counsel was unable to respond to the Court’s question on what it meant for the petitioners to be separated from their kid and whether he was living in a separate house. There was no information on the cause of death or why relatives were not told.  The Additional Public Prosecutor submitted that the laws being the guardian of the house and deceased didn’t inform anyone about the mishap itself gives the hint of them being a party to the crime and even if the same was done by their son, they are liable for concealing death and facts for protecting their son.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the submissions of learned APP. The petitioners being father-in-law and mother-in-law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further, that what was the cause of death for a young girl, who died within seven years of marriage, the Court, upon due consideration, is not inclined to grant pre-arrest bail to the petitioners.” the petitioners were denied bail and matter was disposed of on the mentioned terms. Click here To Read The Judgment Judgment Reviewed By Nimisha Dublish Even learned counsel was unable to respond to the Court’s question on what it meant for the petitioners to be separated from their kid and whether he was living in a separate house. There was no information on the cause of death or why relatives were not told.  The Additional Public Prosecutor submitted that the laws being the guardian of the house and deceased didn’t inform anyone about the mishap itself gives the hint of them being a party to the crime and even if the same was done by their son, they are liable for concealing death and facts for protecting their son.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the submissions of learned APP. The petitioners being father-in-law and mother-in-law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further, that what was the cause of death for a young girl, who died within seven years of marriage, the Court, upon due consideration, is not inclined to grant pre-arrest bail to the petitioners.” the petitioners were denied bail and matter was disposed of on the mentioned terms. Click here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Additional Public Prosecutor submitted that the laws being the guardian of the house and deceased didn’t inform anyone about the mishap itself gives the hint of them being a party to the crime and even if the same was done by their son, they are liable for concealing death and facts for protecting their son.  The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the submissions of learned APP. The petitioners being father-in-law and mother-in-law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further, that what was the cause of death for a young girl, who died within seven years of marriage, the Court, upon due consideration, is not inclined to grant pre-arrest bail to the petitioners.” the petitioners were denied bail and matter was disposed of on the mentioned terms. Click here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the submissions of learned APP. The petitioners being father-in-law and mother-in-law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further, that what was the cause of death for a young girl, who died within seven years of marriage, the Court, upon due consideration, is not inclined to grant pre-arrest bail to the petitioners.” the petitioners were denied bail and matter was disposed of on the mentioned terms.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.365420 Arising Out of PS. Case No. 238 Year 2018 Thana ADAPUR District East Champaran Rajdevo Mahto @ Rajdev Mahto aged about 61 yearsson of late Banshi Mahto Rajkali Devi aged about 57 years wife of Rajdevo Mahto Rajdev Mahto Both resident of village Gamhariya Khurd P.S. Adapur District East ... Petitioner s The State of Bihar For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Sunil Kumar No. III Advocate Dr. Kumar Uday Pratap APP ... Opposite Party s Date : 22 06 2021 The matter has been heard via video conferencing. 2. Heard Mr. Sunil Kumar No. III learned counsel for the petitioners and Dr. Kumar Uday Pratap learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Adapur PS Case No. 2318 dated 23.08.2018 instituted under Sections 304 B 201 34 of the Indian Penal Code 4. The petitioners who are father in law and mother in law of the deceased are accused of killing her due to non Patna High Court CR. MISC. No.365420 dt.22 06 2021 fulfillment of demand of dowry. 5. Learned counsel for the petitioners submitted that they are the father in law and mother in law and were separate from their son i.e. the husband of the deceased. It was further submitted that the husband of the deceased is in custody 6. At this juncture when the Court put a specific query to learned counsel for the petitioners that whether the son was living in a separate house he did not reply. Further on a query of the Court that a young woman has died in the matrimonial home in which the petitioners were also living why the body was cremated without information to her relatives and without informing the police and what was the cause of death learned counsel again had no answer. Even the query of the Court as to what was meant by the petitioners being separate from their son and whether he was living in a separate house learned counsel could not answer. Even the cause of death or the reason why relatives were not informed was not forthcoming. 7. Learned APP submitted that the petitioners being the father in law and mother in law i.e. the guardians and living in the same household cannot shirk their responsibility from the death as it occurred in their house and it was their duty to ensure that if there was no foul play both the authorities as Patna High Court CR. MISC. No.365420 dt.22 06 2021 well as the relatives of the deceased were informed so that they could come and take part in cremation which has not been done. It was submitted that this itself is a pointer that the petitioners were party to the crime and even if it is assumed that it may have been perpetrated only by the son but they are equally responsible for having concealed the death and protecting their son. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the submissions of learned APP. The petitioners being father in law and mother in law and there being no answer forthcoming that they were living in a separate house and also the reason why the relatives of the deceased were not informed and further that what was the cause of death for a young girl who died within seven years of marriage the Court upon due consideration is not inclined to grant pre arrest bail to the petitioners 9. Accordingly the application stands dismissed 10. However in view of submission of learned counsel for the petitioners it is observed that if the petitioners appear before the Court below and pray for bail the same shall be considered on its own merits in accordance with law Patna High Court CR. MISC. No.365420 dt.22 06 2021 without being prejudiced by the present order. (Ahsanuddin Amanullah J J. Alam

A resignation tendered by a Chairman of a Cooperative Society operates from the date of its tender and that no acceptance of the resignation is necessary: Bombay High Court

The respondents have not pointed out any specific provision contained in the Act or the by-laws of respondent no.1 society as to the manner in which such a member can resign from the post of director. In the absence of which, there was no need of the acceptance of the resignation, and even if the letter of resignation is so worded as to make a request of its being accepted that would not in any way affect the operation of the resignation when tendered. Such an observation was made by the Hon’ble Bombay High Court before Hon’ble Justice MANGESH S. PATIL in the matter of Kashinath s/o Kundlik Dongare vs Ahmednagar Zilla Maratha Seva & ors [WRIT PETITION NO. 10757 OF 2021 ] on 30.11.2021 The facts of the case were that the petitioner was disqualified from continuing as a Director of respondent no.1 Credit Cooperative Society on the ground that he was already the chairman of another credit corporate society by the District Deputy Registrar of Cooperative Societies which was later quashed and set aside by the Divisional Joint Registrar, Co-operative Societies, Nashik but the same was upheld by the Hon’ble Minister for State, Co-operation Department. Aggrieved by such a decision of the Hon’ble Minister for State, Co-operation Department, the instant writ petition is preferred by the petitioner. The Hon’ble High Court referred to the case of (Moti Ram V. Param Dev), AIR 1993 SC 1662 in which it was held by the Hon’ble Supreme court that “ if the act of relinquishment is of a unilateral character, it comes into effect when such act indicating an intention to relinquish office is communicated to the Competent Authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti”  Additionally, the Hon’ble High Court observed that there is no other provision laying down the procedure to be followed for tender and acceptance of resignation, the petitioner having tendered his resignation on 6/8/2019, even before the order was passed by the D.D.R., there was no occasion or reason to reach to a conclusion that he had incurred the disqualification under the aforementioned provisions.  Finally, the Hon’ble High Court allowed the writ petition and quashed that decision of the Hon’ble Minister for State, Co-operation Department. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the petitioner was disqualified from continuing as a Director of respondent no.1 Credit Cooperative Society on the ground that he was already the chairman of another credit corporate society by the District Deputy Registrar of Cooperative Societies which was later quashed and set aside by the Divisional Joint Registrar, Co-operative Societies, Nashik but the same was upheld by the Hon’ble Minister for State, Co-operation Department. Aggrieved by such a decision of the Hon’ble Minister for State, Co-operation Department, the instant writ petition is preferred by the petitioner. The Hon’ble High Court referred to the case of (Moti Ram V. Param Dev), AIR 1993 SC 1662 in which it was held by the Hon’ble Supreme court that “ if the act of relinquishment is of a unilateral character, it comes into effect when such act indicating an intention to relinquish office is communicated to the Competent Authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti”  Additionally, the Hon’ble High Court observed that there is no other provision laying down the procedure to be followed for tender and acceptance of resignation, the petitioner having tendered his resignation on 6/8/2019, even before the order was passed by the D.D.R., there was no occasion or reason to reach to a conclusion that he had incurred the disqualification under the aforementioned provisions.  Finally, the Hon’ble High Court allowed the writ petition and quashed that decision of the Hon’ble Minister for State, Co-operation Department. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the case of (Moti Ram V. Param Dev), AIR 1993 SC 1662 in which it was held by the Hon’ble Supreme court that “ if the act of relinquishment is of a unilateral character, it comes into effect when such act indicating an intention to relinquish office is communicated to the Competent Authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti”  Additionally, the Hon’ble High Court observed that there is no other provision laying down the procedure to be followed for tender and acceptance of resignation, the petitioner having tendered his resignation on 6/8/2019, even before the order was passed by the D.D.R., there was no occasion or reason to reach to a conclusion that he had incurred the disqualification under the aforementioned provisions.  Finally, the Hon’ble High Court allowed the writ petition and quashed that decision of the Hon’ble Minister for State, Co-operation Department. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that there is no other provision laying down the procedure to be followed for tender and acceptance of resignation, the petitioner having tendered his resignation on 6/8/2019, even before the order was passed by the D.D.R., there was no occasion or reason to reach to a conclusion that he had incurred the disqualification under the aforementioned provisions.  Finally, the Hon’ble High Court allowed the writ petition and quashed that decision of the Hon’ble Minister for State, Co-operation Department.

on 30 11 2021 on 30 11 1 wp10757 21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 10757 OF 2021Kashinath s o Kundlik Dongare Age : 56 years Occu Business R o 1514 Dwarka Rahane Mala Sangamner Tq. Sangamner Dist.Ahmednagar ..PETITIONERVERSUS1.Ahmednagar Zilla Maratha SevaNagari Sahakari Patsanstha Maliwada Ahmednagar Through its General Manager.2.Babasaheb s o Chhagan Bhagat Age : Major Occu:Business R o. Balaji Travel Kothi Road Ahmednagar.3.The District Deputy Registrar Co operative Societies Ahmednagar.4.The Divisional Joint Registrar Co operative Societies Nashik.5.The Hon’ble Minister for State Co operation Department Mantralaya Mumbai 32...RESPONDENTS…..Mr. S.T.Shelke Advocate for the petitionerMr. S.S.Wagh Advocate for respondent No.1Mr.K.J.Suryawanshi Advocate for respondent No.2Mr. Y.G.Gujrathi A.G.P. for respondent Nos.3 to 5.….. on 30 11 2021 on 30 11 2 wp10757 21CORAM : MANGESH S. PATIL J.JUDGMENT RESERVED ON : 27.10.2021JUDGMENT PRONOUNCED ON : 30.11.2021JUDGMENT : Heard. Rule. The Rule is made returnable forthwith. The learnedadvocate Mr.Wagh waives service for respondent no.1 learned advocateMr.Suryawanshi waives service for respondent no.2 and the learned A.G.P.waives service for respondent nos.3 to 5. At the request of the parties thematter is taken up for final decision at the stage of admission.2]The petitioner is aggrieved by the order of respondent no.5 Ministerallowing revision of the respondent no.2 under Section 154 of theMaharashtra Cooperative Societies Act 1960wherebythe learned Minister confirmed the order passed by the respondent no.3District Deputy Registrar of Cooperative Societiesholding thepetitioner to have incurred a disqualification from continuing as a Director ofthe respondent no.1 Credit Cooperative Society under the provisions ofSection 73CAread with by law no.44of that Society on the groundthat in violation of the by law he was already a Director of another CreditCooperative Society. In doing so the learned Minister has quashed and set on 30 11 2021 on 30 11 3 wp10757 21aside the order passed by the respondent no.4 Divisional Joint Registrar whohad quashed and set aside the order of the D.D.R. and had dismissed thecomplaint of the respondent no.2.3]Pursuant to the stand of the petitioner learned advocate Mr.Shelkewould assail the decision of the D.D.R. and the learned Minister on 2 counts.According to him by law no.44(5) of the respondent no.1 Society isinconsistent with the provisions of Section 73A. When the legislature has laiddown specific grounds for disqualification which do not contain any provisiondebarring a person from being a Director of two societies bylaw no.44(5)laying down such a condition is clearly inconsistent and consequently illegal.In support of his submission he would place reliance on the decision ofSupreme Court in the case of Babaji Kondaji Garad Versus Nasik MerchantsCo operative Bank Ltd. Nasik and others 2 S.C.C. 50.4]His second argument is that the petitioner had already tenderedresignation from the Board of Directors of Respondent No.1 Society on06 08 2019. Since there was no stipulation in the by laws and the act as tothe manner in which such a resignation is to be tendered and accepted itunilaterally operated with immediate effect i.e. the date on which it was on 30 11 2021 on 30 11 4 wp10757 21tendered and consequently when the dispute was raised before the D.D.R. hehaving already ceased to the Director of respondent no.1 Society there was noreason for passing any order of his disqualification by resorting to bylawno.44(5). In support of his submission he would place reliance on thedecisions in the cases of Arun Trivikramrao Rajurkar and others V sGowardhan Janardhan Khotre and others 1982 Mh.L.J. 576 and PrakashMahadeo Khot & Ors V s Maruti Dada Khot & Ors 2005Bom.C.R.568.5]Per contra the learned A.G.P. and the learned advocate for therespondent no.2 would submit that bylaw no.44(5) merely provides for anadditional ground for disqualification and cannot be said to be inconsistentwith Section 73A of the Act. In this regard they would place reliance on thedecision of this Court in the matter of Sambha S o Gangaram Pikale VersusState of Maharashtra and others 1996Mh.L.J. 182.6]So far as tendering of resignation is concerned the learned A.G.P. andthe learned advocate for the respondent no.2 would submit that it was aunilateral act of the petitioner. The resignation was never accepted by therespondent no.1 and he continued to hold the post of Director in therespondent no.1 Society even while he was a Director in Saraswati Gramin on 30 11 2021 on 30 11 5 wp10757 21Bigar Sheti Sahakari Patsanstha.7]Section 73A of the Act lays down the provisions inter alia laying downvarious grounds on which a designated officer would incur disqualification. Itprovides for the definition of a ‘designated officer’ to mean the Chairman orthe President and also any other officer as may be declared by the StateGovernment. It lays down various conditions as to when a designated officercannot continue to hold such post in more than one Society. It is apparent thatthe Director of a Society does not fit into the definition of designated officer asdefined under Section 73Aof the Act. However admittedly the bylawno.44(5) of the respondent no.1 Society lays down a provision debarring amember from holding a post of Director and provides that he should not be aDirector of some other credit cooperative society. When Section 73A of the Actdoes not specifically lay down any provision in respect of eligibility of amember to hold the office of a Director whereas bylaw no.44 of therespondent no.1 lays down such a provision both operate in different spheres.It cannot be said that the bylaw is incompatible or inconsistent with theprovision of Section 73A of the Act. 8]This is what has been concluded by this Court in the matter of Sambha on 30 11 2021 on 30 11 6 wp10757 21(supra). A similar argument in that matter was discarded with followingobservations :“5]Shri Talekar submitted that sincedisqualifications have been prescribed under section73FF and section 73FFF of the Act of 1960 and underRule 58 of the Maharashtra Cooperative Societies Rules 1961 no further qualifications can be laid down underthe by laws. The argument is fallacious. What has beenprescribed in the Act and Rules are the minimum thingswhich cannot be given go by by any Co operativeSociety. Therefore disqualifications as are laid down inthe Act and rules cannot be watered down by the Societyby framing by laws contrary to it. But it does not meanthat the additional qualifications cannot be prescribedunder the by laws. In many cases qualification inrespect of residence is prescribed. In many cases number of shares which should be held by a member forbeing entitled for election as Director are alsoprescribed. It cannot be said that no additionalqualifications can be prescribed under the rules. It wouldbe within the jurisdiction of the Registrar to examinewhether the by laws including such qualifications areproper and reasonable. Since the present by law isapproved by the Registrar it can well be presumed thatthe Registrar has accepted its necessity.”9]It may be observed that Section 73FF of the Act which was in thestatute book till passing of the Maharashtra Cooperative Societies(Amendment) Act 2013 was renumbered as Section 73CA and lays down theprovisions relating to disqualification of committee and its members. This on 30 11 2021 on 30 11 7 wp10757 21provision of Section 73CA of the Act inter alia specifically lays down that aperson shall not be eligible for being a member of a committee of a society ifhe has incurred any disqualification either under Act or the Rules madethereunder. Meaning thereby that even this provision clearly provides fordisqualification of a member from continuing as a member of a committee ofa society even according to its by laws. Therefore there is no substance in thesubmission of the learned advocate Mr.Shelke that bylaw no.44(5) isinconsistent with the provisions of the Act. 10]The decision of the Supreme Court in the case of Babaji Garadis dated 6 8 2019. It bears endorsementsabout its copy having been received by the respondent no.1 as well as theconcerned office of the D.D.R. on the same date i.e. 6 8 2019. Therespondents have not pointed out any specific provision contained in the Actor the by laws of the respondent no.1 society as to the manner in which such amember can resign from the post of director. In the absence of which thedecision of this Court in the case of Arunwhich is subsequentlyfollowed in the case of Prakashwould govern the fact situation.Paragraph no.5 from the decision in the case of Prakash summarizes the law on 30 11 2021 on 30 11 10 wp10757 21as under : “5]In1982 Mh.L.J. 576 aDivision Bench held that a resignation tendered by aChairman of a Cooperative Society operates from the dateof its tender and that no acceptance of the resignation isnecessary. The Division Bench held that there was no needof the acceptance of the resignation and even if the letterof resignation is so worded as to make a request of itsbeing accepted that would not in any way affect theoperation of the resignation when tendered. InAIR 1993 SC 1662 the Supreme Courtheld that if the act of relinquishment is of a unilateralcharacter it comes into effect when such act indicating anintention to relinquish office is communicated to theCompetent Authority. The authority to whom the act ofrelinquishment is communicated is not required to takeany action and the relinquishment takes effect from thedate of such communication where the resignation isintended to operate in praesenti. InAIR 1978 SC 694 the SupremeCourt held that the general principle regardingresignations is that in the absence of a legal contractualor constitutional bar a prospective resignation can bewithdrawn at any time before it becomes effective and itbecomes effective when it operates to terminate theemployment or the office tenure of the resignor. “13]When there is no other provision laying down the procedure to befollowed for tender and acceptance of resignation the petitioner havingtendered his resignation on 6 8 2019 even before the order was passed bythe D.D.R. there was no occasion or reason to reach to a conclusion that he on 30 11 2021 on 30 11 11 wp10757 21had incurred the disqualification under the aforementioned provisions. 14]It is pertinent to note that a specific plea was taken even before theD.D.R. about such tender of the resignation and still he has chosen to discardsuch a plea on the ground that no decision was taken on the resignation bythe Board of Directors and that he still continued to function as such withoutreferring to any provision of the Act or the bylaws.15]To repeat without there being any mandate of law requiring theresignation to be accepted by following some procedure the act of tenderingresignation which is a unilateral act the relation of the petitioner as a memberof the Board of Director would cease the moment he tendered the resignation.The fact that inspite of such resignation he continued and was allowed tocontinue as a Director of the respondent no.1 in my considered view isinconsequential. It may incur some other action by the authorities but thatwould not change the scenario. 16]The upshot of the above discussion though the petitioner has failed toprove that bylaw no.44(5) of the respondent no.1 is inconsistent with theprovision of the Act and cannot be invoked since even before a decision was on 30 11 2021 on 30 11 12 wp10757 21taken by the D.D.R. he had already ceased to be a member of the Board ofDirector the D.D.R. as also the learned Minister have grossly erred in reachingto the conclusion about he having incurred the disqualification. The WritPetition therefore deserves to be allowed.17]The Writ Petition is allowed. The judgment and order under challengeis quashed and set aside. The Rule is made absolute in above terms.[MANGESH S. PATIL J.] umg

Valid registration is necessary for a dealer to claim concessional rate of tax U/S 8 of Central Sales Tax Act, 1956: High Court of Tripura

Liability to pay tax under Section 6 of the CST Act is not connected to the requirement of registration under Section 7. Registration under Section 8 of course, is necessary for claiming a concessional rate of tax on the inter-State sales. this was held in Tripura Electricals v. The State of Tripura and Ors [WP(C) No.1745/2017] in the High Court of Tripura by the division bench consisting of HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI and HON’BLE JUSTICE MR. S G CHATTOPADHYAY. Facts are the petitioner is a proprietary concern engaged in buying and selling goods within the State of Tripura. The proprietor expired and f the elder daughter of the deceased is continuing the same business and has been granted permissions by the department in the name of the proprietary concern. An application was made to the State Value Added Tax authorities for issuance of C-Forms for the years 2015-16 in connection with the inter-State purchases made by the petitioner firm, which had not been issued on the ground that the petitioner firm is not a registered concern. The counsel for the petitioner contended that necessary permits for the inter-State purchase of goods were granted and assessments were made. It was, therefore too late in the day for the authorities now to contend that since the registration of the firm was not amended after the death of the proprietor, C-Forms cannot be issued. The counsel appearing for the respondent submitted that it was the duty of the petitioner to have the registration of the firm duly amended upon the sole proprietor dying. Merely because at one stage certain C-Forms may have been issued would not give a vested right to the petitioner to claim such certificates for subsequent transactions. Even an unregistered dealer is liable to pay taxes. The Court made reference to Section 19 of the T-VAT Act pertains to compulsory registration of dealers and Under Rule 16 of the Tripura Value Added Tax Rules, 2005 a dealer can apply for amendment of certificate of registration. Sub-rule (1) of Rule 16 provides that when any registered dealer furnishes any information in accordance with sub-section (5) of Section 19 to the Superintendent of Taxes within 14 days of occurrence of the event along with the certificate of registration for amendment or cancellation thereof, the concerned Superintendent of Taxes shall amend the certificate accordingly after making such inquiry as he deems fit. The court observed that “the petitioner never applied for amendment of the registration after the death of the sole proprietor of the concern, the information in this respect was available with the department and in any case, even after the death of the proprietor the business was continued by the wife of the deceased with the help of the elder daughter who was to inherit the business in succession.”

Page HIGH COURT OF TRIPURA WP(C) No.1745 2017 Tripura Electricals. Situated at Mantribari Road P.O. Agartala PS West Agartala District West Tripura PIN 799 001. .. Petitioner(s). 1. The State of Tripura represented by Secretary Department of Finance New Secretariat Complex P.O. Kunjaban Agartala District West Tripura. 2. The Commissioner of Taxes Central Sales Tax Authority P.N. Complex P.O. Kunjaban Agartala District West Tripura. 3. The Superintendent of Taxes Charge IV Palace Compound P.O. Agartala West Tripura. .. Respondent(s). B_E_ F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE JUSTICE MR. S G CHATTOPADHYAY : Mr. B N Majumder Sr. Advocate For Petitioner(s) Mr. Rajib Saha Advocate. For Respondent(s) Mr. A Nandi Advocate. Date of hearing & Judgment : 19th April 2021. : Mr. K Dey Addl. Gov. Advocate Whether fit for reporting : No. Page JUDGMENTAkil Kureshi CJ ). Petitioner has prayed for a direction to the respondents for issuing C Forms as required under Central Sales Tax Act 1956 in favour of the petitioner firm. 2] Brief facts are as under : The petitioner is a proprietary concern and originally one Sri Kalyan Prasad Saha was the proprietor of the concerned. The proprietary concern was engaged in buying and selling goods within the State of Tripura and for which it was registered as a dealer under the Tripura Value Added Tax Act 2004 and CST Act. The proprietor Sri Kalyan Prasad Saha was expired on 13th March 2014. According to the legal heirs of the deceased he had left behind a will executed on 24th January 2014 under which he had given his proprietary business by way of testamentary succession to his elder daughter Smt. Madhu Chanda Saha alias Misthu Saha after the death of his wife Smt. Mamata Saha. According to the petitioner Mamata Saha the wife of the deceased is still alive. However for convenience the elder daughter of the deceased i.e Madhu Chanda Saha is continuing the same business and entered into detailed correspondence and has been granted permissions by the department in the name of the proprietary concern. Page 3] On 27th April 2016 on behalf of the proprietary concern an application was made to the State Value Added Tax authorities for issuance of C Forms for the years 2015 16 in connection with the inter State purchases made by the petitioner firm. This would invite tax at reduced rates. However the respondents have not issued such C Forms presumably on the ground that the petitioner firm is not a registered concern. 4] Appearing for the petitioner learned Advocate Mr. Rajib Saha submitted that the respondent authorities were well aware about the death of the original proprietor of the concern and that his wife and daughter had inherited the business. It was on this basis that necessary permits for inter State purchase of goods were granted and assessments made which were also challenged before appellate authorities and appeals were entertained. It would therefore be too late in the day for the authorities now to contend that since the registration of the firm was not amended after the death of the proprietor C Forms cannot be issued. 5] On the other hand learned counsel Mr. A Nandi appeared for the respondents as a special counsel and opposed the petition. Referring to an affidavit in reply dated 29th September 2018 filed by the respondents he submitted that it was the duty of the petitioner to have the registration of the firm duly amended upon the sole proprietor dyeing. The petitioner Page failed to do so. Merely because at one stage certain C Forms may have been issued would not give a vested right to the petitioner to claim such certificates for subsequent transactions. Even an unregistered dealer is liable to pay taxes. 6] Having heard learned counsel for the parties and having perused documents on record we notice that Section 6 of the CST Act creates a liability on every dealer to pay tax as per the prescribed rates. Sub section 1) of Section 6 provides that subject to the other provisions of the Act every dealer shall with effect from such date as the Central Government may notify be liable to pay tax under the Act on all sales of goods other than electrical energy effected by him in course of inter State trade or commerce. Section 7 of the Act pertains to registration of dealers. Under sub section of Section 7 every dealer liable to pay tax under the Act has to get himself registered within such time as may be prescribed by making an application for such purpose. Sub sectionof Section 8 of the Act provides that every dealer who in course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub sectionshall be liable to pay tax which shall be three per cent of his turnover or at the rate applicable under laws of the State where the sale takes place whichever is lower. It is in this context the requirement for the Page petitioner to obtain C Form arises. However one thing may be noted that the liability to pay tax under Section 6 of the CST Act is not connected to the requirement of registration under Section 7. Registration of course is necessary for claiming concessional rate of tax on inter State sale. 7] With this background in mind we may refer to the provisions of T VAT Act. Section 19 of the T VAT Act pertains to compulsory registration of dealers. Sub sectionof Section 19 provides that no dealer while being liable to pay tax under the Act shall carry on the business unless he has been registered and possesses a certificate of registration. Every such dealer would make an application for registration as provided in sub section of Section 19. Such registration shall be granted if the Commissioner is satisfied about its requirements as provided in sub sectionsandof Section 19. Sub sectionof Section 19 provides that the Commissioner may from time to time amend any certificate of registration in accordance with information furnished or otherwise received and such amendment may be made with retrospective effect in such circumstances and subject to such restrictions and conditions as may be prescribed. Sub section of Section 19 pertains to situations where a registration shall be cancelled by the Commissioner. Clause of sub section provides that when the owner of an ownership business dies Page leaving no successor to carry on the business the same shall be cancelled by the Commissioner. 8] Under Rule 16 of the Tripura Value Added Tax Rules 2005a dealer can apply for amendment of certificate of registration. Sub rule of Rule 16 provides that when any registered dealer furnishes any information in accordance with sub section of Section 19 to the Superintendent of Taxes within 14 days of occurrence of the event along with the certificate of registration for amendment or cancellation thereof the concerned Superintendent of Taxes shall amend the certificate accordingly after making such inquiry as he deems fit. 9] In the present case we find that though the petitioner never applied for amendment of the registration after the death of the sole proprietor of the concern the information in this respect was available with the department and in any case even after the death of the proprietor the business was continued by the wife of the deceased with the help of the elder daughter who were to inherit the business in succession. 10] We have noticed that a valid registration is necessary for a dealer to claim concessional rate of tax on inter Sate sale of goods under Section 8 of CST Act. The demand of the petitioner therefore for the authorities to Page issue C Form without amending the registration therefore cannot be accepted. However as noted since the department has also virtually accepted the succession of the business upon death of the sole proprietor let the petitioner even now apply for amendment of the registration certificate. If such applications are filed within a period of two weeks from today with supporting documents the superintendent shall after following the procedure laid down in Section 19(5) T VAT Act and Rule 16 of the T VAT Rules shall dispose of such application as expeditiously as possible. If he does accept the application the same would have effect from the date of death of the sole proprietor. If such amendment in the registration is granted it would be open for the petitioner to re activate the request for grant of C Form on inter State transactions which shall be decided on With these observations and directions the petition is disposed of. Pending application(s) if any also stands disposed of. ( AKIL KURESHI CJ )

Mere Supply of Grounds of Imprisonment Insufficient in absence of Other Material: High Court of Jammu & Kashmir and Ladakh at Srinagar

Detention of a detenu is vitiated if material in the shape of grounds of detention with no other material or documents, as referred to in the order of detention is provided, as observed by the High Court of Jammu & Kashmir and Ladakh at Srinagar, before the HON’BLE JUSTICE MR. ALI MOHAMMAD MAGREY, in the matter of Bashir Ahmad Beigh vs. Union Territory of Jammu & Kashmir and Ors. [WP (Crl) 171/20], on 07.12.21. Detenu, Bashir Ahmad Beigh, of District Baramullah through his wife, through the present petition, sought quashment of detention order dated 21.10.2020 purporting to have been passed by District Magistrate, Baramulla, with consequent prayer for release of the detenu forthwith. The grounds of challenge were that firstly, no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, more so in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody; secondly, the detenu had not been provided the material forming basis of the detention order, to make an effective representation against his detention order; thirdly, that the impugned order has been passed without proper application of mind; and fourthly, that the detention order was not provided to the detenu within the statutory period. The respondents submitted that the detention order was well founded in fact and law and sought dismissal of the Habeas Corpus Petition. The Learned Counsel for the Petitioner submitted that the grounds taken in the detention order and the material referred to and relied upon have no relevance because the detenu was in custody, despite bail granted by the competent court of law, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. The Counsel relied on precedents in order to assert that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. It was argued that all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution of India. The Honourable High Court of Jammu & Kashmir and Ladakh at Srinagar, held that, examining the present case on the touch stone of the settled position of law and perusal of record, the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material or documents, as referred to in the order of detention. On these counts alone, the detention of the detenu was held vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention. Accordingly, the detention order dated 21.10.2020 was quashed and the detenu, Bashir Ahmad Beigh, was directed to be released from preventive custody forthwith.

IN THE HIGH COURT OF JAMMU& KASHMIR AND LADAKH AT SRINAGAR Reserved on 28.10.2021 Pronounced on 07.12.2021 WP171 20 Bashir Ahmad Beigh Through: Mr. Wajid Haseeb adv. UT of J&K and Ors Through: Ms. Asifa Padroo AAG Hon’ble Mr Justice Ali Mohammad Magrey Judge. Detenu Bashir Ahmad Beigh s o Ghulam Mohi ud din Beigh R o Shirpora Chandoosa District Baramullah through his wife seeks quashment of detention order no. 111 DMB PSA 2020 dated 21.10.2020 purporting to have been passed by District Magistrate Baramulla with consequent prayer for release of the detenu forthwith. The petitioner detenu has challenged the order of detention on the following grounds: “a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention moreso in view of the fact that as on the date of passing of the aforesaid order of detention the detenu was already in custody b) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order c) that the impugned order has been passed without proper application of mind. d) that the detention order was not provided to the detenu within the statutory period”. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents. Perused the writ records and despite directions detention record has not been produced by the learned counsel for the respondents. 5. Learned counsel for detenu has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was in custody despite bail granted by the competent court of law therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority therefore the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon 2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point both of the Supreme Court and of various High Courts including our own High Court are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v. State of Gujarat 3 SCC 440 the Apex Court relying on its earlier judgments in Khudiram Das v State of W. B. 1975) 2 SCR 81 Icchu Devi Choraria v. Union of India 4 SCC 531 in paragraph 10 of the judgment has held as under: “Two propositions having a bearing on the points at issue in the case before us clearly emerge from the aforesaid resume of decided cases:all documents statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention andall such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the In Khudiramcasethe Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). In Smt. Icchu Devi Casethe Supreme Court has taken the view that documents statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents statements and other materials flows directly as a necessary corollary from the right conferred on the to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully exercised. So far as the ground taken i.e non communication of the grounds of detention is concerned perusal of file reveals that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court “LallubhaiJogibhai Patel v. Union of India 2 SCC 427” the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu but the Apex Court held that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as under: is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in language which he understands. The whole purpose of communicating the ‘grounds’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 22(5) is infringed.” In view of the law laid down by the Apex Court in aforesaid cases the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 11. Examining the present case on the touch stone of the above settled position of law and perusal of record the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material documents as referred to in the order of detention. On these counts alone the detention of the detenu is vitiated the detenu having been prevented from making an effective and purposeful representation against the order of detention. 12. Accordingly the detention order No. 111 DMB PSA 2020 dated 21.10.2020 is quashed and the detenu Bashir Ahmad Beigh son of Ghulam Mohi ud din Beigh R o Shirpora Chandoosa District Baramulla is directed to be released from preventive custody forthwith. No order as to costs. 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Ali Mohammad Magrey) Judge Disposed of. Srinagar Syed Ayaz Hussain Whether order is speaking: Yes No. Whether order is reportable: Yes No.

The cause of action for passing off are premised on “classical trinity” form or the extended form : Delhi High Court

When a Court adjudicates upon an infringement or a passing off action, it is required to take into account, not only the rights of the plaintiff and the defendant, but also the interests of the public at large. While the plaintiff is interested in preserving and protecting the investment made by her/him in the mark so that she/he can derive maximum gains, the defendant asserts a countervailing right, which is, to attract maximum number of consumers was held in the case of RB Health (US) LLC AND Anr. Vs. Dabur India Ltd., CS(COMM) 319/2020. The facts of the case are that,  RB (US) and RB (India) claim to be part of a multi-national by the name Reckiit Benckiser PLC and they are into manufacture and sale of health and hygiene products.  The plaintiffs have approached this Court with the instant action and sought interim reliefs given the fact that Dabur has introduced a soap bar with the “offending shape and configuration”, under the brand name “SANITIZE”, on 30.07.2020. The plaintiffs in this case are seeking an injunction against the defendant from manufacturing, importing, marketing, advertising, promoting, selling and/or using plaintiff no. 1/RB Health (US) LLC’s registered design i.e. design no. 271671, falling in class 28-02, in relation to a soap bar. Passing off is a tortious action for deceit. For such an action to succeed, it must have, in the very least, the following three indicia’s, commonly known as the “classical trinity”. The said markers are articulated in what is commonly known as the Jiff Lemon case [Reckitt & Colman Products Ltd. vs. Borden and can, broadly, be paraphrased in the manner set forth hereafter. While concluding on the first aspect which is concerned with colour, shape, and smell of the soap bar – there is enough and more material to show that there are several soap bars in the market with similar features if not identical features. Insofar as the second and third aspects are concerned, which pertain to, the use of taglines and indications by Dabur that are similar to those taglines and indications used by the plaintiffs – it is required to be noticed that neither the taglines nor the indications/signs are registered with the trademark authority. Since the competing products, like others products in the market, are hygiene-products, the taglines and indications/signs used by the plaintiffs appear to be “customary” in the “current language” of the trade for the purpose of designating hygiene-products which includes soap bars. Thus, the Court held that the packaging adopted by Dabur is one which seeks to distinguish its product from that of the plaintiffs’. It needs to be emphasized that insofar as the shape and configuration is concerned, the same is not apparent to the consumer till such time the packaging is removed. Thus, not inclined to grant an injunction in favour of the plaintiffs and against Dabur.

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgement reserved on 26.08.2020 Judgement pronounced on 27.11.2020 I.A. No. 6865 2020 CS(COMM) 319 2020 RB HEALTHLLC AND ANR. .....Plaintiffs Through Mr. Chander M. Lall Senior Advocate with Mr. Jawahar Lai and Ms. Nancy Roy Advocates. DABUR INDIA LTD. .....Defendant Through Mr. Hemant Singh Ms. Mamta Jha Mr. Manish Kumar Mishra and Ms. Singh Advocates. HON BLE MR. JUSTICE RAJIV SHAKDHER RAJIV SHAKDHER J.: TABLE OF CONTENTS Preface........................................................................................................................................ 2 Background facts ....................................................................................................................... 3 Submissions on behalf of the plaintiffs ...................................................................................... 5 Infringement of design registrations obtained by the plaintiffs ............................................. 6 Passing off .............................................................................................................................. 7 Submissions on behalf of Dabur: ............................................................................................. 9 Reply to the charge of passing off ........................................................................................ 11 Analysis and reasons ................................................................................................................ 14 Passing off ............................................................................................................................ 18 Conclusion ............................................................................................................................... 24 Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 I.A. No. 6865 2020 Preface: The plaintiffs before me are seeking an injunction against the defendant from manufacturing importing marketing advertising promoting selling and or using plaintiff no. 1 RB HealthLLC’s registered design i.e. design no. 271671 falling in class 28 02 in relation to a soap barLLC’s registered design in connection with the aforementioned 1.2. Besides this the plaintiffs also seek an injunction against the use of their tagline “be 100 % sure” and or qua the trade dress packaging as also the colour of the soap bar manufactured and or sold by the defendant. 1.3. Along with the aforementioned reliefs consequential reliefs for surrendering offending material such as advertising leaflets labels pamphlets etcetera and stock bearing the subject design registration whether packed or unpacked are also sought. 1.4. Before I proceed further I may indicate that plaintiff no. 1 RB Health US) LLC would hereafter be referred to as “RBPvt. Ltd. would be referred to as “RBand RB will be referred to as plaintiffs. These interim reliefs are sought in aid of the suit in which a panoply of final reliefs are sought such as permanent injunction rendition of accounts damages as also the relief for delivering up the offending goods. I.A. No. 6865 2020 in CSNo. 319 2020 Signature Not Verified 2.1. However what is at the heart of the matter at least at this stage are two aspects. i. First as to whether or not Dabur has raised a credible challenge to the validity of the RBand RBclaim to be part of a multi national going by the name Reckiit Benckiser PLC. It is averred that as a group they are into manufacture and sale of health and hygiene products which are sold under well known brands such as “Dettol” “Harpic” “Lizol”. While RB is a company registered under the laws of State of Delaware USA and as indicated above is the owner of the subject design registration the authority to use the same it is stated has been vested in RBis also inter alia in the business of manufacturing health care home care and hygiene products. It is also averred that RBamongst other products manufactures Dettol soap bar. iii. Although there is a reference to several registered designs there are two sets of registrations which are relevant for the purpose of this case. The first set of registrations which are relevant are the design registrations for soap bar bearing numbers 229435 and 229436 falling Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 in class 28 02. These registrations it is claimed were obtained by the plaintiffs’ group company on 21.05.2010 having a reciprocity date of 23.11.2009. The second design registration which is relevant is the subject registration which was obtained as adverted to hereinabove by RB on 24.04.2015. The subject design registration has a reciprocity date of 04.11.2014 and as noticed above falls in class 28 02. Intermingled with these facts are assertions by the plaintiffs that the Dettol antiseptic liquid was first marketed in United Kingdom in 1933. The attempt perhaps is to link the liquid soap with the soap bar. It is also asserted that the sword device was adopted by the plaintiffs insofar as India was concerned in 1999 2000. 4.1. There is also an assertion to the effect that the plaintiffs adopted the tagline “be 100% sure” in 2003 and likewise the other tagline i.e. “everyday protection against wide range of unseen germs” in 2010. It is also averred by the plaintiffs that they adopted and started using the packaging for their soap product which contains an overlapping plus sign in 2010. There is also a reference to the fact that in 2014 the plaintiffs commenced the use of another tagline i.e. “protection from 100 illness causing germs”. It appears that the purpose behind making a reference in the plaint to the dates when the aforementioned taglines and packaging were adopted is to bolster their claim that Dabur is guilty of committing the tort of passing off. It is in this background that the plaintiffs have approached this Court with the instant action and sought interim reliefs given the fact that Dabur has introduced a soap bar with the “offending shape and configuration” under the brand name “SANITIZE” on 30.07.2020. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 5.1. The suit came up for hearing before the Court for the first time on 14.08.2020 when Mr. Hemant Singh entered appearance on behalf of Dabur. The plaintiffs were represented by Mr. Chander M. Lall senior advocate. On that date one of the issues which came to fore was whether or not there were known designs in public domain which were similar to the subject design registration. 5.2. Mr. Hemant Singh had on that date screen shared the following two design registrations concerning Hindustan Unilever Limitedwhich were according to him similar to the subject design registration a direction was issued to the Controller of Design to furnish certified uncertified copies of such design registrations if an application in that behalf was moved by either party. Besides the aforesaid direction the usual directions of issuing summons in the suit and notice in the captioned application were also issued. 5.4. Thus having regard to the urgency expressed by the plaintiffs Dabur filed a short affidavit in reply to the captioned application. 5.5. The arguments in the captioned application were heard thereafter on various dates and the judgement was finally reserved on 26.08.2020. Submissions on behalf of the plaintiffs: On behalf of the plaintiffs Mr. Lall made the following broad submissions under the following two heads. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 Infringement of design registrations obtained by the plaintiffs: i. A comparison of the subject design registration and the Dabur’s product i.e. the soap bar) would show that Dabur’s soap bar if not identically shaped and configured as the subject design registration is an obvious and fraudulent imitation of the same. Consequently Dabur is guilty of infringement or more bluntly put piracy as envisaged under Section 22 of The Design Act 2000Ltd. vs. Schneider Electric Industries SA 2002PTC 632iii. The stand of Dabur that the subject design registration is not significantly distinguishable from the known design or combination of known designs as the plaintiffs are the owner of the 2009 design is flawed.of the Designs Act.] This provision permits similar designs to be registered albeit by the same proprietor. Thus the subject design registration cannot be invalidated only because it has features which are common with the 2009 design. The fact that RBand RBare part of the Reckitt Benkiser group of companies is sufficient to fulfil the requirement of common proprietor as provided in Section 6(4) of the iv. Dabur’s reliance on the 2010 design registrations of HUL is futile for two Designs Act. reasons. a) First these designs were registered after the plaintiffs had obtained the 2009 design registration. b) Second the HUL registration of 2010 claim rights only in the colour or combination of colours applied to its product and not in its shape and configuration. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 v. Dabur’s reliance on third party registrations made outside India prior to 2009 cannot help its cause for the following reasons: a) Firstly the designs registrations relied upon are not similar to the 2009 design or the subject design registration of the plaintiffs. b) Secondly the registrations made outside the country is not a ground available under Section 19 (a) of the Designs Act for invalidating a design registered in India. c) Thirdly the design registrations relied upon do not constitute prior d) Lastly there has been neither any publication nor has any evidence of publication made prior to 2009 been placed on record. A. In support of this submission it was argued that World Intellectual Property Organisation search report filed by Dabur does not disclose when the said organisation published the searches placed on record by Dabur along with its affidavit in reply. Countries publish only one view of the design registration for the purposes of search being carried out by the public at large which does not assist in reaching a conclusion as to whether or not that particular design is similar to any other design. Passing off: The fact that Dabur is seeking to pass off its product as that of the plaintiffs’ is evident from the following features which are exclusively associated with the plaintiffs’ product. Dabur has thus committed a tort of passing off by slavishly adopting these features. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 i. Predominance of green colour packaging and label with elements of white colour. ii. The colour of the two soap bars which is orange. iii. The shape contour and configuration of the soap bars. iv. The endorsement of the following taglines: “Be 100% Sure” “Everyday protection against a wide range of germs” “Germ protection for the whole family” and “protection from 100 illness causing germs”. v. The sword device. vi. Distinctive smell. vii. The overlapping plus design both on the product and the packaging. 7.1. While one or more features which are associated with the plaintiffs’ product if copied may not amount to passing off the usage of all features referred to hereinabove does establish dishonesty and deceit. The idea is to cause confusion in the mind of the consumer.It is obligatory on the part of a second comer to dress its product in a manner that steers clear of the charge that there is likelihood of confusion. 7.3. The assertion of Dabur that the taglines used by the plaintiffs being descriptive are not protected is erroneous. PTC 370]. This is dehors the submission that the taglines used by the plaintiffs are not descriptive of their 7.4. The submission advanced by Dabur that one of the registrations which bears the tagline “Be 100% sure” contains a disclaimer qua the same and therefore had lost its legal efficacy is flawed as it does not prevent the Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 plaintiffs from claiming common law rights. Notwithstanding the disclaimer the plaintiffs would be entitled to sue for the tort of passing off in addition to infringement provided other registrations bear no such disclaimer. PTC 370] 7.5. The fact that there are other entities which manufacture and sell soap bars that bear the shape and configuration similar to the 2009 design and the subject design registration does not foreclose the plaintiffs’ right to seek relief as these designs do not precede the aforementioned designs owned by the plaintiffs.PTC 49] Submissions on behalf of Dabur: 8. Mr. Hemant Singh on the other hand in opposition made the following submissions. i. Dabur has not committed any design infringement as alleged or at all. The soap bar manufactured by Dabur bears the shape and configuration of publicly known designs which precede the subject design registration. The following designs have been in public realm prior to the subject design registration. Name of entity Design number Registration date Date of publication DM 012454 233189 ii. Dabur actions are within the sphere of the “Gillette Defence” doctrine. In other words if a defendant uses a design which is in public domain it would not constitute infringement.No. 319 2020 PTC 630 and Sandeep Jaidka vs. Mukesh Mittal 2014 PTC iii. The subject design registration is invalid as it is neither novel nor original in view of the aforementioned prior designs. In this behalf reliance was placed on Section 4andread with Section 19(c) of the Designs Act. iv. The plea of invalidity qua a registered design can be raised by a defendant as a defence in a suit for infringement. The grounds for cancellation of registration available under Section 19 of the Designs Act can be invoked as defence in an action for design infringement. In this context reference was made to the provisions of Section 22 of the Designs Act. v. Design registration can be sustained if challenged if it is novel and original on the date of its priority. In the instant case the design was registered in 2015 bearing a priority date of 04.11.2014. vi. The test of novelty is that the suit design must be substantially different in its visual appeal and effect when compared to an earlier known design. In other words the suit design should not be merely a trade variant of an earlier known design. PTC 268] vii. The fact that the subject design registration is invalid is demonstrable if regard is had to the 2009 registration. In this behalf reference was made to the averments made in paragraph 32 of the plaint. In this context it was also submitted that the best case scenario for the plaintiffs is that the subject design registration is a trade variant of the 2009 design. viii. The attempt made by the plaintiffs to explain away the charge levelled against them that the subject design registration is only a trade variant of the 2009 design by placing reliance on Section 6 of the Designs Act must Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 fail for the reason that the two designs are owned by separate juridical entities. In other words since the proprietor owner of the 2009 design and the subject design registration are not common the saving provision which is subsectionof Section 6 of the Designs Act would not help the cause of the plaintiffs. Therefore the logical corollary should be that the subject design registration is declared invalid on the ground of lack of novelty and or originality when compared to the known design which in this case apart from other designs that are in public domain is the 2009 design. PTC 155 Videocon v. Whirlpool 2012 SCC OnLine Bom 1171 and Vodafone International Holdings BV v. Union of India &Anr. 6 SCC 613] ix. An interim injunction is not granted in a design infringement action if there is a credible challenge put forth with regard to its validity on the ground of lack of novelty. The subject design registration not being “substantially different” from earlier known designs as is sought to be demonstrated by reference to other registered designs published both in India and abroad the plaintiffs’prayer for interim injunction ought to be rejected.SCC OnLine Del 2970 and Bharat Balar & Another vs. Rajendra Distributors & Others 2015 3 L.W. 292] Reply to the charge of passing off: Passing off is an action in deceit. For the plaintiffs to succeed in such an action it would have to establish a proprietary right in the impugned trademark. In this case the plaintiffs have claimed that Dabur is guilty of passing off on account of similarity in the colour that the two competing packaging’s bear I.A. No. 6865 2020 in CSNo. 319 2020 Signature Not Verified the colour of the soap bar and the use of generic and descriptive phrases or taglines. None of these features can be made subject matter of proprietary rights. There are only a limited number of colours available in the universe and especially in the sphere of soap bars which are promoted as disinfectants. 9.1. Likewise the plaintiffs cannot in law claim proprietorship of generic or descriptive trademarks and taglines as they are common to the trade as also the English language. 9.2. Marks which are descriptive cannot be monopolised and therefore no passing off action will lie against its use. 9.3. Since the taglines or descriptive marks are not registered therefore no case of infringement can be made out by the plaintiffs. The mere fact that the label is registered does not give rights in the descriptive marks. In this behalf reference was made to Section 17 of the Trade Marks Act 1999 in respect of packaging and the colour of the soap which is orange. Both features Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 are common to trade. The aforesaid is evident if one were to peruse the following illustrations. Extracts taken from pages 19 and 20 of the short reply affidavit filed by Dabur 9.6. Dabur itself has been using the green colour for its packaging in respect of soap bars manufactured and sold by it in the international market. Furthermore the plaintiffs themselves have been using different colours for packaging their Dettol brand soap bars and therefore the claim of exclusivity qua the green colour is flawed. 9.7. The plaintiffs have failed to establish that the packaging used by them and the descriptive elements superimposed on it have acquired distinctiveness. 9.8. Dabur’s soap bar is distinguishable from that of the plaintiffs’ soap bar. This is discernible by having regard to Dabur’s packaging. The packaging used bears the Dabur brand prominently leaving no scope for confusion in the minds of an ordinary consumer having imperfect memory.9.9. The plaintiffs have failed to make out a prima facie for grant of injunction. Dabur has been in the business of manufacture and sale of soap bars in India since 2010. Dabur has attained in a short time a turnover of Rs. 6 Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 crores on account of sales of “Dabur Sanitize” soap bar and therefore if injunction is granted it would cause irreparable injury to its business interests. Analysis and reasons: 10. Having heard learned counsel for parties and perused the record to my mind what needs to be put at the forefront are two things. Firstly a comparative chart of various design registrations. Secondly the get up packaging trade dress of the competing products. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 Extracts taken from pages 9 to 12 of the documents filed by the plaintiffs: 11. The first table which sets out prior publications of known designs to my mind prima facie establishes that there is a serious and credible challenge that the subject design registration is new or original. The principle feature of the subject design registration is the rounded corners and the two “dimples” on either side of the soap bars. The prior designs which were published by Unilever on 28.02.1989 and 31.01.1995 are similar to the subject design registrationNo. 319 2020 design registration is not validly registered if one were to bear in mind the provisions of Section 19(1)(b) and read with Section 4(a) (c) of the Designs Act. 11.2. The argument advanced on behalf of the plaintiffs that the WIPO search report does not disclose the date of publication is on the face of it incorrect. 11.3. Document 2 filed with Dabur’s short affidavit in reply which is the extract from WIPO search report adverts to the date of the publication. 11.4. The submission of Mr. Lall that registrations of the known and similar designs made outside the country would not ipso facto lead to cancellation of designs registered in India under Section 19(1)(a) of the Designs Act unless such designs are registered in India as per the statutory protocol provided in that behalf is correct. 11.5. That being said a design which is registered abroad can be protected in India provided an application for that purpose is made with the concerned authorities in India within a period of six months from the date when the protection is sought qua the design in the United Kingdom or other convention countries or group of countries which are members of inter governmental organisation. The applicant can be either the person who initially applied for protection of the design either alone or jointly with any other person. In such an eventuality the applicant would be entitled to claim that the registration under the Designs Act is prior to other applicants and shall thus have the same priority date as the date of the application where it was first preferreddepict the shape or other features of the article which are clear Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 to the eye. 12.1. The ocular impression should be the same as one would experience of the design in issue if it were to be applied to a physical object. If such a situation obtains as it does in this case in my view then it would fall within the purview of Section 4(b) of the Designs Act. 12.2. In other words the prior publication would fulfil the indicia of being in ‘tangible form’ or use prior to the date of filing. In the instant case as noticed above the Unilever designs were published on 28.02.1989 and 31.01.1995. These designs give the same visual impression which one would obtain when applied to the concerned article i.e. a soap bar. See: Reckitt Benkiser India Ltd. vs. Wyeth Ltd. 2013 SCC OnLine Del 1096] 13. Therefore the argument advanced by Mr. Lall that the extracts from the WIPO search do not come within the scope of Section 4(b) of the Designs Act is untenable and hence rejected. The said provision when read with Section 19(1)(b) and juxtaposed with the circumstances brought to fore in this case at least at this stage presents a credible challenge to the validity of the subject design registration. 14. At this juncture I may also indicate that on behalf of Dabur Mr. Singh had submitted that the assertions made in paragraph 32 of the plaint would without more establish that the subject design registration is neither new nor novel. The relevant extract from paragraph 32 of the plaint is set forth hereafter. “32. On the aspect of shape comparison it is submitted that for purposes of passing off the test is of an ordinary and unwary customer with imperfect recollection i.e. the test is of a man who may have seen the Plaintiff’s product at one given point of time and has a faint recollection of the former. To such a person the Defendant’s soap would be considered deceptively and confusingly similar to Plaintiff’s 2010 shape as well as the 2015 shape. An unwary customer would largely be attracted by the overall outer shape of the two products with the unusual dimple dip on both sides. It is submitted that none of the other soaps have this feature. Most soaps available in the market are either rectangular or rectangular with round oval edges. None of the leading soaps in the market have the unique dimple dip on both sides.” Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 14.1. Mr. Lall when confronted with this assertion in the plaint sought refuge in the provisions of Section 6(4)(b) of the Designs Act. Based on the said provision Mr. Lall argued that the Designs Act permits similar designs to be registered by the same proprietor. It was contended that the similarity of the subject design registration with the 2009 design would not invalidate the former. In my view this argument would hold well if the proprietor of the subject design registration and the 2009 design were the same person entity. The proprietor of the subject design registration is RBwhile the proprietor of 2009 design is Reckitt BenckiserHealth Limited. 15.1. A design is a tangible asset which in law can have only one proprietor as in law like any other asset it would bear a value. None of the judgements cited by Mr. Lall rail against this proposition. The argument that the two designs are owned by a group of concerns which fall under the same corporate umbrella is not good enough to fall within the framework of Section 6(4)(b) of the designs Act. 16. Therefore to my mind this aspect as well presents a credible challenge insofar as the plaintiffs seek to invoke their statutory rights under the Designs Act qua the subject design registration. Passing off: 17. Passing off is a tortious action for deceit. For such an action to succeed it must have in the very least the following three indicia’s commonly known as the “classical trinity”. The said markers are articulated in what is commonly known as the Jiff Lemon case No. 319 2020 Inc. 1 All E.R. 873] and can broadly be paraphrased in the manner set forth hereafter. i. First the plaintiff must be able to establish that it has the necessary goodwill and reputation in the goods sold or services offered to the consumers at large which in turn should be interlinked with the get up in which they are proffered. ii. Second the plaintiff must be able to demonstrate that the defendant’s misrepresentation qua the goods or services offered by him have led consumers to believe that they originate from the plaintiff. iii. Third that the action of the defendant has resulted in damage or is likely to result in damage on account of the misrepresentation of the defendant with regard to the origin of the goods and services. 17.1. The aforesaid principles were reiterated in Consorzio Del Prosciutto Di Parma vs. Asda Stores Limited and Others UKHL 7 and Harrods Limited vs. Harrodian School Limited 1996 RPC 697. 17.2. It is pertinent to note while applying the first indicia set out hereinabove the difference between reputation and goodwill has to be borne in mind. While goodwill is inextricably linked to territory reputation may extend beyond the geographical area where business is carried out. 17.3. Therefore in a case where a plaintiff institutes a passing off action it is incumbent upon him to demonstrate that he has inter alia goodwill in the jurisdiction over which the concerned Court has sway. 17.4. The very same parameters have been adopted by this Court as well. In this behalf see the following observations in Rich Products Corporation & Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 Anr. vs. Indo Nippon Food Ltd. 2010 SCC OnLine Del 734 No. 37 2010]. “39. Consequently this brings me to the submission of the plaintiffs that the defendant s use of the infringed mark constitutes passing off. In this connection let me reiterate the well known parameters of what constitutes passing off. Passing off as is ubiquitously held in most jurisdictions subject to usual turn of phrase or change of phraseology a tort of false representation whether intentional or unintentional whereby one person attempts to sell his goods or services as those manufactured or rendered by another which is “calculated” to damage the goodwill of that other person. Thus the necessary ingredients which a plaintiff in an action of passing off is required to prove is the: i) employment of deception. Mere confusion will not suffice ii) intent is not a necessary as long as the unwary consumer is deceived and iii) the act of the tort should injure the goodwill not just his reputation. The cause of action for passing off are premised on the “classical trinity” form or the extended form. A “classical form” of passing off is one where a person seeks to trade his goods as those originating from another thus injuring such person s individual business and goodwill. Extended form of passing off is one where court s seek to protect “shared goodwill” accruing in favour of a class of traders for example on account of geographical connotations R.P.C. 16 Vine Products Ltd. v. Mackenzie & Co Ltd. R.P.C. 1Erven Warnink v. J. Townend & Sons R.P.C. 31(in short the ‘Advocaat case’) and Reckitt Colman Products Ltd. v. Borden R.P.C. 341 H.L] 39.1. In my view the defendant cannot be said to have committed the tort of passing off if the test set out above are applied to the facts obtaining in the instant case. The defendant s trade mark “Bells Whip Topping” when looked at in the setting in which the mark is affixed which has a picture of a cake on the cover leaves no doubt in my mind that there is not even a slightest attempt to deceive by the defendant. The defendant on the packaging has prominently alluded to the fact that the product is being sold by it as ‘Bell s’ non dairy ‘Whip Topping’. Therefore merely because it uses on its packaging a colour scheme comprising of red blue and white colours would not to my mind be sufficient to constitute a tort of passing off.” In the instant case what has come through is that the plaintiffs’ assertion that Dabur has committed the tort of passing off is broadly pivoted on the following three grounds. i. First the colour smell configuration and shape of the soap bar. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 ii. Second the taglines used by the plaintiffs qua its products such as “be 100% sure” “everyday protection against a wide range of unseen germs” “germ protection for the whole family” and “protection from 100 illness iii. Third the device of a sword and an overlapping plus + design on the causing germs”. product packaging. 18.1. Insofar as the first aspect is concerned which is the colour shape and smell of the soap bar there is enough and more material to show that there are several soap bars in the market with similar features if not identical features. 18.2. Likewise insofar as the second and third aspects are concerned which pertain to the use of taglines and indications by Dabur that are similar to those taglines and indications used by the plaintiffs it is required to be noticed that neither the taglines nor the indications signs are registered with the trademark authority. Since the competing products like others products in the market are hygiene products the taglines and indications signs used by the plaintiffs appear to be “customary” in the “current language” of the trade for the purpose of designating hygiene products which includes soap bars.18.3. That being said one cannot quibble with the proposition that taglines or indications signs over a period of time by their constant use can get embedded in the minds of the customer so as to remind them of the origin of the goods. 18.4. In other words the taglines and indications signs can over a period of time acquire a secondary meaning and or significance whereby goods and services offered by the plaintiff can be distinguished from those of its competitors. This aspect however is a matter which falls in the realm of evidence. The evidence placed before the Court should be such which Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 demonstrates distinctiveness.18.5. The use of such taglines and indications signs is not enough to establish distinctiveness. Therefore financial figures placed on record with regard to sales turnover and advertising spend may point in the direction of the use of taglines and indications signs but that by itself may not be enough to establish distinctiveness. The plaintiffs have not placed on record any surveys of customers which would at least prima facie establish the distinctiveness of their taglines or indications signs. I must add a caveat here that even surveys have to be looked at carefully albeit at the stage of trial as their outcome would be dependent on the sample and the quality of the questions put to the consumers. It would be relevant to note that at this juncture there is no tangible material placed before me by the plaintiffs which would persuade me to hold that the taglines and indications signs and other features referred to hereinabove remind the consumer of the plaintiffs’ product. 19.1. Besides this as alluded to hereinabove passing off action is a tort of deceit and when one looks at the get up adopted by Dabur it is clear at least at this stage that it does not intend to misrepresent that the soap bar manufactured by it originates from the plaintiffs. The packaging boldly bears the mark “Dabur”. The background colour is dark green as against the packaging of the plaintiffs which has a combination of white and light green. Dabur’s packaging bears a cross and a shield whereas that of the plaintiffs’ bears a plus + sign. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 19.2. To my mind even if the test of “imperfect memory” is appliedit does not have me conclude at least at this stage that Dabur’s product could be confused with that of the plaintiffs’. 19.3. Clearly when a consumer buys defendant’s product it cannot miss the word mark “Dabur”. In my opinion the cumulative effect of the packaging adopted by Dabur is one which seeks to distinguish its product from that of the plaintiffs’. It needs to be emphasized that insofar as the shape and configuration is concerned the same is not apparent to the consumer till such time the packaging is removed. It has to be borne in mind that when a Court adjudicates upon an infringement or a passing off action it is required to take into account not only the rights of the plaintiff and the defendant but also the interests of the public at large. While the plaintiff is interested in preserving and protecting the investment made by her him in the mark so that she he can derive maximum gains the defendant asserts a countervailing right which is to attract maximum number of consumers. The public on the other hand seek creation of an environment which is conducive to a healthy competition amongst manufacturers and sellers. I may also indicate that in a passing off action while precedents are good for the purposes of alluding to the established principles most cases turn on the facts obtaining in the matter. The following observations in the Jiff Lemon’s case bring this aspect to the forefront which practitioners and courts need to bear in mind. “Although your Lordships were referred in the course of the argument to a large number of reported cases this is not a branch of the law in which reference to other cases is of any real assistance except analogically. …” Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 22.1. Therefore multiplying authorities will not take the matter any further. Each case more often than not especially in a passing off action turns on its own facts. Conclusion: 23. Therefore for the foregoing reasons I am not inclined to grant an injunction in favour of the plaintiffs and against Dabur. 24. The captioned application is accordingly dismissed. It is clarified though that the observations made hereinabove will not impact the final adjudication of the case. Furthermore Dabur will maintain an account of sales made concerning its soap bar which bears the impugned design and get up. The details and the accompanying documents backed by an affidavit of an authorised representative will be placed on the Court record every quarter till the final adjudication of the case. NOVEMBER 27 2020 Click here to check corrigendum if any RAJIV SHAKDHER J At 10:30 A.M. Present: Ms. Nancy Roy Advocate on behalf of the plaintiffs Mr. Manish Mishra Advocate on behalf of Dabur CS(COMM) 319 2020 I am informed by Mr. Manish Mishra who appears on behalf of Dabur that the matter in the usual course is fixed before the Joint Registraron 04.12.2020 for completion of pleadings. Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020 27. Accordingly let the suit be listed before the Joint Registraron the aforementioned date. The Joint Registrar will ensure that the pleadings are completed and admission denial of the documents is carried out by the parties before the matter is listed in Court. 28. List the matter before this Court on 02.03.2021. The date already fixed in the matter i.e. 02.12.2020 shall stand cancelled. NOVEMBER 27 2020 Click here to check corrigendum if any RAJIV SHAKDHER J Signature Not Verified I.A. No. 6865 2020 in CSNo. 319 2020

The true test for determination by the Collector is the market value of the property on the date of the instrument: High court of Allahabad

Petitioner sought a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Jayant Banerji, J..In the matter, Pratap Singh V/s State of U.P. and Others [WRIT – C No. – 53843 of 2010] dealt with an issue mentioned above. The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of and another Ram Khelawan alias Bachcha v. the State of U.P. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumi dhari over which agricultural activities were being carried on. However, the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds, respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47-A(3) of the Act that is also relied on in the judgment of this Court in Ram Khelawan (supra) and several other decisions. The court perused the facts and arguments presented in the case accordingly, the impugned order of respondent no.2 dated 31.12.2009, insofar as it assesses the valuation of the land in question on the basis of the minimum rates, is set aside. The order of the Additional Commissioner (Administration) dated 26.05.2010 is also set aside insofar as it affirms the order of respondent no.2 assessing the market value on the basis of the minimum rates. Click here to the judgment Judgment reviewed by Sakshi Mishra

Court No. 38 Case : WRIT C No. 538410 Petitioner : Pratap Singh Respondent : State of U.P. and Others Counsel for Petitioner : Rajesh Kumar Mishra Counsel for Respondent : C.S.C Hon ble Jayant Banerji J Heard Shri Rajesh Kumar Mishra learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava learned Standing Counsel appearing for the respondents. By means of this petition the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate Finance & Revenue) Moradabad in Case No.407 09 under Section 33 40 47 of the Indian Stamp Act 18991 whereby by means of an ex parte order deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner Administration) Moradabad Mandal Moradabad whereby the appeal filed by the petitioner under Section 56 of the Act being Appeal No.74 2009 10 has been partly allowed by reducing the amount of penalty imposed upon the petitioner The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869 Ka an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950 totalling 0.387 hectares in Village Bhogpur Mithauni Tehsil & District Moradabad by means of a sale deed executed on 27.09.2007 which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner in which it was held that the plots in question are for residential usage and therefore deficiency of stamp duty of Rs.1 38 400 and penalty of Rs.1 38 400 alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex parte order passed by the respondent no.2 an appeal was filed by the petitioner before the Additional Commissionerin the appellate order has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been 2 2005 AWC 1087 imposed upon the petitioner under the facts and circumstances of the Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that accordingly no fault exists in the order of the respondent no.2 on this ground and also on the ground that the service of notice on the petitioner was deemed sufficient It is noticed as is admitted that the impugned order dated 31.12.2009 was ex parte. It is not the contention of the learned counsel for the petitioner that any restoration application was filed on behalf of the petitioner in respect of the aforesaid order dated 31.12.2009. The petitioner straightaway proceeded to file the appeal under Section 56 of the Act. The grounds of appeal that has been enclosed as Annexure 6 to the writ petition do not contain any ground with regard to the non receipt of notice. Among the grounds raised is of lack of opportunity of hearing to the petitioner. In view of the aforesaid the affirmation on behalf of the petitioner that no notice was received by him is belied The order of the respondent no.2 Additional District Magistrate has been passed relying upon the report of the Assistant Inspector General of Registration dated 16.10.2009 in which it was mentioned that portions of lands of those very Khasra numbers were subject of instrument Nos.4894 05 601 06 and 2463 07 on which stamp duty on the basis of the residential rates was paid. The respondent no.2 has observed that since neither the petitioner nor his counsel had appeared nor any objection was filed it would be deemed that he accepts the report and notice. Accordingly the deficiency in stamp duty and penalty were imposed. Annexure 5 is the report made by the Assistant Inspector General of Registration dated 16.10.2009. The relevant part of the report dated 16.10.2009 is extracted below: अधोहस्ताक्षरिरित द्वारिा अद्र्द्धनगरिीय एवं उपान्त क्षरेत्र के कृ िषि आधािरित मूल्यांकन वाले िवक्रय िवलेखों के मूल्यांकन जांच के क्रम मे उक्त िवक्रय िवलेख मेरिे संज्ञान मे आया। अिभिलेखों के अवलोकन से खसरिा न० 869 948 व 950 ित स्थित ग्राम भिोगपुरि िमठौनी से सम्पि कत्ति क्रय की गयी तथिा आवासीय दरि के मूल्यांकन परि स्टाम्प शुल्क अदा िकया गया है। उक्त प्रकारि के कितपय िवलेखों का िववरिण िनम्न सािरिणी मे िदया जा रिहा हैः ि कजस परि वगर्द्ध मी० शुल्क अदा 869 869 948 948 उपरिोक्त सािरिणी के अवलोकन से स्पष्ट है िक खसरिा न० 869 948 950 ित स्थित ग्राम भिोगपुरि िमठौनी से सम्बन्धित न्धत िवक्रय िवलेख संख्या 4894 05 601 06 तथिा 2463 07 का िनबन्धन्धन िकया गया तथिा िनधार्द्धिरित आवासीय दरि के मूल्यांकन परि स्टाम्प शुल्क अदा िकया गया है। एक ही ग्राम एक ही एक ही खसरिे की भिूिम के दो दरिो के आधारि परि सम्पि कत्ति के बन्धाजारि मूल्य का िनधार्द्धरिण िकया जाना तकर्द्ध संगत एवं िवि कध सम्मत् नही है िक सािरिणी मे उिल्लिखि कखत िवलेख िववािदत िवलेख संख्या 5733 07 के द्वारिा अन्तिरित सम्पि कत्ति के मूल्यांकन हेतु उपयुक्त एवं तकर्द्ध संगत पूवर्द्ध दृष्टांत दृष्टांत स्टि कजत करिते है। .....” As is evident from the report as extracted above that three specific exemplar deeds have been relied upon by the Assistant Inspector General of Registration to reflect the residential usage over the land in question. In the decision of Ram Khelawana coordinate Bench of this Court had made an observation that no reliance can be placed on an ex parte report for deciding the case. It was observed that the ex parte inspection report may be relevant for initiating the proceedings under Section 47 A of the Act and after initiation of the case inspection is to be made by the Collector or the authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the U.P. StampRules 1997. Though this Court is in respectful agreement with the aforesaid observations made by this Court in the case of Ram Khelawanhowever in the present case at hand the ex parte report specifically refers to three exemplar instruments that were considered by the Assistant Inspector General of Registration while making his report. It was therefore open for the District Magistrate in the facts and circumstances of the present case where despite notice neither any objection was filed on behalf of the petitioner nor had any advocate appeared on his behalf to rely upon the ex parte report which was based upon the exemplar deeds. It is always open to the Collector or the authority undertaking an examination of an instrument under Section 47 A(3) of the Act to refer to exemplar deeds for the purpose of ascertaining the market value even though they may form part of an ex parte report that has led to the initiation of the proceedings under Section 47 A(3) of the Act. Therefore no fault can be attributable to the respondent no.2 in relying upon the three exemplar deeds that find mention in the ex parte report dated 16.10.2009. In view of the above the order of the Additional Commissioner upholding the order of the respondent no.2 cannot faulted as far as this aspect is concerned. However the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds the respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47 A(3) of the Act that is also relied in the judgment of this Court in Ram Khelawan supra) and several other decisions. In the decision of a three Judge Bench of this Court in the case of Smt. Pushpa Sareen vs. State of U.P.3 it has been held as follows: 3 2015ADJ 136 26. The true test for determination by the Collector is the market value of the property on the date of the instrument because under the provisions of the Act every instrument is required to be stamped before or at the time of execution. In making that determination the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument 27. Undoubtedly the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land 28. The fact that the land was put to a particular use say for instance a commercial purpose at a later point in time may not be a relevant criterion for deciding the value for the purpose of stamp duty as held by the Supreme Court in State of U.P. and others v. Ambrish Tandon and another 2012) 5 SCC 566. This is because the nature of the user is relateable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where however the potential of the land can be assessed on the date of the execution of the instrument itself that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector therefore would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser Accordingly the impugned order of the respondent no.2 dated 31.12.2009 insofar as it assesses the valuation of the land in question on the basis of the minimum rates is set aside. The order of the Additional Commissionerdated 26.05.2010 is also set aside insofar as it affirms the order of the respondent no.2 assessing the market value on the basis of the minimum rates. The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds and not on the basis of the minimum rates. This exercise shall be done by the authority concerned within a period of three months from today. Since the petitioner is represented no separate notice is required to be sent to him. It is however provided that the petitioner shall appear before the respondent no.2 on 22.12.2021 alongwith a certified copy of the order passed today whereafter dates may be fixed. In case of failure of the petitioner in appearing on that day it will be open to the authority concerned to proceed in accordance In view of the aforesaid observations and to the extent mentioned above this writ petition is allowed Order Date : 07.12.2021 Jayant Banerji J

Violating the order and discipline of the force and using threatening language with superior officer is not admissible : High Court of Delhi

Counsel for the Petitioner preferred restoration of the petition dated 17th May 2017 under Section 117 of the BSF Act, challenging his dismissal order dated 04th March 2017. Considering the Petitioner’s past conduct and the offences committed by him the petition is dismissed by the High Court of Delhi through the learned HON’BLE MR. JUSTICE MANMOHAN & HON’BLE MR. JUSTICE NAVIN CHAWLA in the case of EX (CON) CHANDAN KUMAR SHARMA vs Union of India (W.P.(C) 1061/2020) on 24 of February, 2022. Facts of the case are that the petitioner has filed present application seeking restoration of W.P.(C)1061/2022, which had been dismissed in default and on account of non-prosecution. Learned counsel for the petitioner states that the counsel  was unwell and thus could not appear on the last date of hearing i.e. on 17th January, 2022 and it was neither intentional nor deliberate. Learned counsel for the Petitioner states that two charges were framed against the Petitioner as per the charge sheet dated 12th May 2016 i.e. using threatening language with his superior officer and violating the good order and discipline of the force. He states that SSFC (Summary Security Force Court) conducted the proceedings against the Petitioner and was found guilty of both the charges and consequently dismissed from service. Learned counsel for the Petitioner emphasises that the Petitioner has no criminal records and since the Petitioner was the best cadet of his unit, many persons are inimical to him. He also states that at the time of incident, the Petitioner was slightly disturbed as his wife was unwell. A perusal of the record reveals that the Petitioner was a habitual offender who had been punished seven times in the past and given warning twice for using threatening and insubordinate language with his superiors. In the counter affidavit, it has also been stated that the Petitioner was in the habit of overstaying his leave. After looking the Petitioner’s past conduct and the offences committed by him, the honourable  Court  is of the view that the punishment awarded to the Petitioner is commensurate with the gravity of the offences and calls for no interference in writ jurisdiction. Accordingly, the present writ petition is dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI EXCHANDAN KUMAR SHARMA Through Mr.S.D.Mishra Advocate UNION OF INDIA Through Mr.Dilbag Singh Advocate Date of Decision: 24th February 2022 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J (Oral The petition has been heard by way of video conferencing W.P.(C)1061 2022 which had been dismissed in default and on account of Learned counsel for the Applicant Petitioner states that the counsel for the Petitioner was unwell and thus could not appear on the last date of hearing i.e. on 17th January 2022. He states that non appearance on the part of learned counsel for the Petitioner was neither intentional nor deliberate Issue notice. Mr.Dilbag Singh Advocate accepts notice on behalf of the respondent Keeping in view of the averments in the application the same is allowed and the matter is restored to its original status Accordingly the application stands disposed of 6. With the consent of learned counsel for the parties present petition is taken up for hearing It is pertinent to mention that the present writ petition has been filed challenging the order dated 27th September 2017 passed by DG BSF whereby the Petitioner’s dismissal order dated 04th March 2017 has been confirmed and the Petitioner has been dismissed from service. Petitioner also seeks re instatement with all consequential benefits Learned counsel for the Petitioner states that two charges were framed against the Petitioner as per the charge sheet dated 12th May 2016 i.e. using threatening language with his superior officer and violating the good order and discipline of the force. He states that SSFC conducted the proceedings against the Petitioner on 06th September 2016 and vide order dated 04th March 2017 the Petitioner was found guilty of both the charges and consequently dismissed from service He states that the Petitioner preferred a petition dated 17th May 2017 under Section 117 of the BSF Act challenging his dismissal order dated 04th March 2017. He emphasises that Respondent vide the impugned order dated 27th September 2017 has rejected the petitioner s petition and confirmed the findings dated 04th March 2017 passed by THQ 85 BN BSF Malkangiri Learned counsel for the Petitioner emphasises that the Petitioner has no criminal antecedents and since the Petitioner was the best cadet of his unit many persons are inimical to him. He also states that at the time of incident the Petitioner was slightly disturbed as his wife was unwell 11. A perusal of the record reveals that the Petitioner had pleaded guilty to the charges in the SSFC. Further the Petitioner was a habitual offender who had been punished seven times in the past and given warning twice for using threatening and insubordinate language with his superiors 12. Consequently the defence of the petitioner that the Petitioner was disturbed on the date of incident due to his wife’s ill health ‘cuts no ice’ with In the counter affidavit it has also been stated that the Petitioner was in the habit of overstaying his leave 14. Hence considering the Petitioner’s past conduct and the offences committed by him this Court is of the view that the punishment awarded to the Petitioner is commensurate with the gravity of the offences and calls for no interference in writ jurisdiction 15. Accordingly the present writ petition is dismissed MANMOHAN J NAVIN CHAWLA J FEBRUARY 24 2022 Page

Suganchand & Co VS Bhramayya & Co.

Where the debtor is to collect & remit there is confidence & trust. Where the debtor is to use & repay on demand, there is no trust There the claimants were Suganchand & Co. They made a claim against the Hanuman Bank in liquidation, praying that they be treated as persons to be paid in full in preference to the ordinary creditors of the bank. Hanuman Bank had its head-quarters in Tanjore, & branches in several places in the Madras State, like Madras, Kumbakonam, Thiruthuraipundi, Madurai, etc. It crashed, & the headquarters suspended payment on 15-7-1947.The Madurai, Kumbako-nam, Thiruthuraipundi & other branches of the Bank suspended payment only on 16-7-1947. Suganchatd & Oo. sold some gooda to Messrs. Swami Foundry, Madurai for Rs. 3235-2-6 in April 1947, & as directed by the vendees, sent the railway receipt with the bill for the above amount through the Madurai branch of the Hanuman Bank Ltd. for collection of the said amount from Swami Foundry, Madurai & for remitting to them the amount so collected through a demand draft. The entire amount of Rs. 3235-2-6 was paid to the Madurai branch of the Hanuman Bank by Messrs. Swami Foundry on 10-7-1947, & the Madurai branch issued a demand draft for the entire amount of Rs. 3235-2-6 on their Madras branch for payment at Madras.This demand draft reached Suganchand & Co. & it was presented to the Hanuman Bank, Madras, on 14-7-1947 through their bankers, the Bharat Bank, for collection. The Hanuman Bank was then about to close its doors, & the draft was returned unpaid with the endorsement, “Awaiting funds; present again”.ISSUE BEFORE THE COURT:Whether the fiduciary relationship of principal & agent or the jural relationship of creditor & debtor will obtain, & in what circumstances each of these relationships will obtain?RATIO OF THE COURT:The court observed after hearing both the learned counsels and looking into the submissions that the law relating to demand drafts dots not present any great difficulty. It is only the application of the law to the particular facts of each of these cases which causes some difficulty. A demand draft is, of course, a bill of exchange drawn by a bank on another bank, or by itself on its own branch, & is a negotiable instrument not offending the Paper Currency Act or the Reserve Bank of India Act.It is very nearly allied to a cheque, the difference between it & a cheque consisting largely in two facts that first is it can be drawn only by a bank on another bank, & not by a private individual as in the case of cheques. Secondly, it cannot so easily be countermanded as a cheque, either by the person purchasing it, as by the drawer of a cheque or by the bank to which it is presented.The law regarding the rights of a purchaser of a demand draft is also well settled. A mere purchaser of a demand draft from a bank is only a creditor of the Bank, & there is no fiduciary relationship between the bank which issued the draft & the customer who took it. The ownership of the money paid for the purchase of the draft passes to the Bank, as it is one of the usual & recognised banking transactions, & the purchaser gets what he has bargained for, namely, a draft of the bank, the payment of which depends on the solvency of the head office at the time of the presentation of the draft. See In re Oriental Bank Corporation ; Ex parte Guillemin, (1884) 28 ch. 634 at p. 641 ; In re Travancore National & Quilon Bank, A. I. R. (27) 1940 Mad 101; The Official Assignee v. Natesam Pillai, A. I. R. (27) 1940 Mad. 441 ; The Alliance Bank of Simla Ltd. v. Amritsar Bank, A. I. R. (2) 1915 Lah. 214; Indian Hume Pipe Co. Ltd. v. Travancore National & Quilon Bank Ltd., I.L.R. (1943) Mad, 187; In re Noakhali Union Bank Ltd., 54 C.W.N. 744 and In re Calcutta Commercial Bank Ltd., 54 C. W. N. 747.The court observed that this court did not saw anything against the validity of such an agreement strictly restricted as stated above, & applied only to cases where the bank has not accounted for the money collected by it on behalf of the principal, & covered by the draft, by paying it out either to the principal or his nominee or by purchasing a draft on any other bank as per the instructions of the principal by paying the amount collected for that purpose. Such a restricted & exceptional case would only amount to something similar to engaging a man to carry coins or currency notes in specie, paying him wages for such transmission, the only difference being that the man engaged will be the bank & that the transmission charges will be much lower, & that an instrument called the draft is used in the place of the coins or the currency notes. Of course, there must be the clearest proof that the Bank was not to use the sum for its own purpose, & that the holder of the draft uses it only for the transmission of the money. Thus, if the draft is negotiated by the person getting it, in favour of another, the ordinary incidence of law will at once operate & make the assignee only a mere; creditor of the bank, the relationship of principal & agent having terminated.The important distinction between the two cases is the existence of the fiduciary relationship between the bank & the customer in the first case which entitles the customer to preferential payment in full on liquidation, & the mere relationship of creditor & debtor in the second case. The second case will, of course, also exist where the relationship of principal & agent has terminated by payment of the money collected to the principal or his nominee or by purchasing a draft on another bank on his instructions. The mere fact that the money BO collected by the bank has been mixed up with money of its own is immaterial so long as there is a fund on which the principal cestui que trust can lay his hands.The court contended that all the three appellants only wanted the demand drafts for the purpose of transmitting the money to themselves. None of them had any banking accounts, current or deposit, with the Hanuman Bank & in the case of the Indian Mutual Life Association they had expressly declined to open an account with the Hanuman Bank. In the case of the Indian Mutual Life Association, it is also clear from the correspondence between the parties; & especially the letter of the Hanuman Bank dated 30-5-1947, that the sending of the drafts was understood by the parties to be not a discharge of the bank’s obligation as agent for collection, & that the proceeds of the drafts had to be realised by the Indian Mutual Life Association & credited towards the premia collected by the Bank as its agent & a receipt given.The drafts, also called cheques in the Bank’s correspondence, issued to the Indian Mutual Life Association & to Suganchand & Co., the appellants in O. S. A. Nos. 99 & 85 of 1949 respectively, were issued by branches of the Hanuman Bank on the Hanuman Bank, Madras. This court is satisfied, on the evidence, that there was request by the Indian Mutual Life Association & by Suganchand & Co. to the Hanuman Bank, to send the collections by demand drafts on Madras, & that the sending of the drafts on the Hanuman Bank, Madras, would satisfy the terms of that request, & we rejected the contention on behalf of these appellants that the request could be complied with only by sending the demand drafts on another bank in Madras. The court observe that the non-charging of commission on the amount collected & remitted to Suganchand & Co. is of no significance. But this court hold that the Hanuman Bank was entitled to hold the moneys involved in these two appeals only in law, and that the appellants had an equitable right to the moneys, preventing the Official Liquidator from merging them with the general funds of the bank, as the appellants had not got what they had bargained for, namely, the collections made on their behalf, & the bank had not been authorised to use the collections & had not accounted for the collections, as a matter of fact, to the appellants, their principals, by handing them over to the appellants or their nominees, or to another bank for purchasing the demand draft and terminated the fiduciary relationship of principal & agent.The bank had not admittedly handed over the funds either to the nominees of the appellants, or credited them to any accounts of the appellants in the bank & thus terminated the relationship of principal & agent. Of course, if the appellants & their nominees had taken the moneys from the bank & purchased drafts even on the Hanuman Bank, Madras, for the purpose of transmission, & without any express agreement that it was solely for the purpose of transmission & that the bank would be liable to pay the amount of the draft, in any event, at Madras, to the appellants, before being discharged from their liability under the draft, the appellants would only rank as creditors, along with other creditors, & would not be entitled to preferential payment, but that would be because the fiduciary relationship as principal & agent terminated the moment the money was paid over & the new relationship of creditor & debtor took its place.But merely purchasing drafts on their own bank at Madras in the name of the appellants, as per the instructions of the appellants to remit by demand drafts on Madras, & receipt of such drafts by these appellants, did not, in our opinion, terminate the relationship of principal & agent. No. doubt, as Mr. Swaminathan urged, the collections made on behalf of the appellants were mixed up with the other funds of the bank by such purchase of the drafts, but that will not do away with the relationship of principal & agent as already stated, as the funds can be traced from the funds of this bank with the liquidator.It is also significant that the appellants in these cases presented their drafts to the Hanuman Bank, Madras, for payment, & that they were returned unpaid with the obviously disingeneous endorsement “Awaiting funds. Present again”, & the doors of the bank were closed when presentation was made again as requested. Surely equity will compel this bank to honour the draft issued by itself on itself, & will not allow it to escape its responsibility by this kind of tactics. The essence of payment by cheque or draft on oneself is the understanding that it will be honoured, otherwise, it will be like giving a worthless piece of paper as representing a currency note or valuable security. DECISION HELD BY COURT:The court stated that with the request of the appellant in this appeal to be treated as a person entitled to payment in full as a preferential creditor of the Hanuman Bank Ltd. In this view, this appeal deserves to be & is hereby dismissed with costs.The Official Liquidator will, of course meet the costs of the Bank in these appeals & also pay the costs in the two appeals decided against the Hanuman Bank from the Bank’s assets. Advocate’s-fee fixed at Rs. 200 in O. S. A. Nos. 99 & 85 of 1949 (each) & at Rs. 100 in O. S. A. No. 89 of 1949.

Messrs. Brahmayya And Co.These are three connected appeals against the orders of Rajagopalan J. passed on the Original Side and raise an important and interesting question regarding the rights of a person who has entrusted a bank with collecting his dues and remitting them to him by demand drafts where the bank has gone into liquidation and the drafts are therefore left uncashed. The question is whether a person in such a case will be entitled to get his full dues as a preferential creditor or must rank only with the other creditors and be content to receive the dividends given in liquidations in other words whether the fiduciary relationship of principal and agent of the jural relationship of creditor and debtor will obtain and in what circumstances each of these relationships will obtain. The facts are briefly these: O.S.A. No. 849 is an appeal against the order in Appln. No. 4549. There the claimants were Suganchand and Co. They made a claim against the Hanuman Bank in liquidation praying that they be treated as persons to be paid in full in preference to the ordinary creditors of the bank. Hanuman Bank had its head quarters in Tanjore and branches in several places in the Madras State like Madras Kumbakonam Thiruthuraipundi Madurai etc. It crashed and the head quarters suspended payment on 15th July 1947. The Madurai Kumbakonam Thiruthuraipundi and other branches of the Bank suspended payment only on 16th July 1947. Suganchand and Co. sold some goods to. Messrs. Swami Foundry Madurai for Rs. 3235 2 6 in April 1947 and as directed by the vendees sent the railway receipt with the bill for the above amount through the Madurai branch of the Hanuman Bank Ltd. for collection of the said amount from Swami Foundry Madurai and for remitting to them the amount so collected through a demand draft. The entire amount of Rs. 3235 2 6 was paid to the Madurai branch of the Hanuman Bank by Messrs. Swami Foundry on 10 7 1947 and the Madurai branch issued a demand draft for the entire amount of Rs. 3235 2 6 on their Madras branch for payment at Madras. This demand draft reached Suganchand and Co. and it was presented to the Hanuman Bank Madras on 14th July 194 7 through their bankers the Bharat Bank for collection. The Hanuman Bank was then about to close its doors and the draft was returned unpaid with the endorsement “Awaiting funds present again.” On 15th July 1947 the Hanuman Bank Madras closed its doors and most of its branches followed suit on 16th July 1947. Suganchand and Co. thereupon filed a claim for the payment of the full amount to the Official Liquidator but were refused. Thereupon they filed Appln. No. 454 of 1949 on the Original Side for full payment of the amount as preferential creditors with 9 per cent interest per annum alleged to be the usual trade rate from 10th July 1947 till date of payment. Rajagopalan J. held that as they had asked the Hanuman Bank to collect the amount and remit it by a demand draft payable at Madras the position was as if they had received money in cash at Madurai from the Hanuman Bank and had then purchased the draft over counter as the bank was made their agent for the purchase of the draft and so as the law stood they had got what they had bargained for namely a draft of the bank the payment of which depended on the solvency of the head office at the time of their presentation as held in In re Oriental Bank Corporation Ex parte Guillemin(1) and that they were entitled only to rank as ordinary creditors and not as preferential creditors and dismissed the application with costs. Hence this appeal. O.S.A. No. 849 was filed by the Canara Bank Ltd. Mangalore against a similar order of Rajagopalan J. in Appln. No. 10049. The facts there were briefly these. The Canara Bank sent to the Kumbakonam branch of the Hanuman Bank a bill for Rs. 1000 drawn by one Periyasami Mudaliar on Shanmugasundaram Pillai and Sons Kumbakonam. The Canara Bank s request ran as follows: “We shall thank you to collect the amount in trust for us and remit the proceeds to us by demand draft on Erode.” The Hanuman Bank Kumbakonam collected the amount of the bill and after taking the commission of as. 5 for expenses of realisation issued a demand draft for Rs. 999 11 0 in favour of the Canara Bank on the Erode office of the Hindu Bank Karur Ltd. The Canara Bank presented the draft at the Hindu Bank Karur on 15th July 1947 and it was returned unpaid with the endorsement “No advice. Present again.” That very day of course the Hanuman Bank Madras had closed its doors and other branches followed suit the next day. So the Canara Bank put in Appln. No. 1008 of 1949 on the Original Side for being treated as a preferential creditor and being paid in full and not merely ranked as an Ordinary creditor for this amount along with the other creditors in liquidation. Rajagopalan J. rejected this application for being treated as preferential creditors with costs for the same reason as the application of Suganchand and Co. holding that the trust imposed on the Hanuman Bank by the Canara Bank for collection and remittance by demand draft was discharged by the issue of the demand draft by the Hanuman bank on the Hindu bank Karur. Hence this O.S.A. No. 949 is against the order of Rajagopalan J. in Appln. No. 1274 of 1949 by the Indian Mutual Life Association Ltd. The Indian Mutual Life Association had appointed various branches of the Hanuman Bank Ltd. as its agents to collect monies due by its constituents towards the premia on policies taken out by them. The Hanuman bank had applied to the Indian Mutual Life Association for being appointed collecting agents for such premia. The Indian Mutual Life Association had by its letter dated 11th October 1945 authorised them to act as collecting agents on a commission of half an anna per hundred rupees regarding many of the branches. The material portion of the letter ran as follows: “Regarding transfer of funds our practice is that the collections of each month should be sect to us by a demand draft payable at Madras within the first week of the next month. There is at present no necessity for a current account with your head office. We adopt the above procedure with our bankers too. Kindly therefore direct your branches to remit the collections as advised above. Kindly also direct them to send us the triplicate challan promptly the same day as the money is received to enable us to send out our official receipt to the parties.” A sample of the subsequent dealing by the Hanuman Bank regarding the amounts so collected can be gathered by their letter dated 30th May 1947. The material portion of it runs as follows: “We beg to enclose herewith a draft No. 06422 for Rs. 1004 2 0 on our Madras branch the proceeds of which may kindly be credited towards premiums due on policies collected. The receipt of the same may kindly be acknowledged and the official receipt sent to us at your earliest convenience. Please excuse for the delay.” Then follows the detailed statement of the various collection of premia and deduction of postage and payment towards commission and arrival of the figure. On 30th June 1947 the Hanuman Bank Kumbakonam sent a cheque or draft on the Hanuman Bank Madras for Rs. 1540 9 0. It ran as follows: “On demand pay the Indian Mutual Life Association Ltd. or order a sum of Rs. 1540 9 0 only for the value received.” On 10th July 1947 the Hanuman Bank Thiruthuraipundi sent a cheque or draft for Rs. 57 7 0 to the Indian Mutual Life Association on the Hanuman Bank Madras. The form was as below: “On demand pay the Indian Mutual Life Association or order a sum of Rs. 57 7 0 only for the value received.” The first draft was presented by the Indian Mutual Life Association to the Hanuman Bank Madras for payment at first on 10th July 1947 and was returned unpaid with the endorsement “Awaiting funds Present again.” It was presented again along with the other draft on 15th July 1947. The bank returned both the drafts unpaid and closed its doors. Hence the Indian Mutual Life Association applied to the liquidator for payment in full of the sums covered by the above two drafts as well as two other sums of Rs. 3000 6 0 and Rs. 1174 3 0 collected by the branches of the Hanuman Bank but not remitted by demand drafts. The Official Liquidator filed Appln. No. 10049 praying for the Court s directions. Rajagopalan J. ordered the two sums of Rs. 3000 6 0 and Rs. 1174 3 0 to be returned in full to the Indian Mutual Life Association as the amounts had not been remitted by demand draft or otherwise dealt with as per the instructions of the principal and so the fiduciary relationship of principal and agent had not ceased but regarding the two demand drafts he rejected the claim of the Indian Mutual Life Association to be treated as preferential creditor entitled to be paid in full and directed it to rank only as an ordinary creditor along with the other creditors in liquidation. This appeal is confined of course to the order of Rajagopalan J. regarding the two drafts. We have perused the entire records and heard the arguments of the Counsel for the appellants and Mr. S. Swaminathan for the Official Liquidator. Mr. T.M. Ramaswami Aiyar argued generally on the legal position regarding the drafts for the appellants in all the three appeals the Counsel in the two other appeals supplementing his arguments only regarding the particular facts in those appeals. The law relating to demand drafts does not present any great difficulty. It is only the application of the law to the particular facts of each of these cases which causes some difficulty. A demand draft is of course a bill of exchange drawn by a bank on another bank or by itself on its own branch and is a negotiable instrument not offending the Proper Currency Act or the Reserve Bank Act. It is very nearly allied to a cheque the difference between it and a cheque consisting largely in two facts. Firstly it can be drawn only by a bank on another bank and not by a private individual as in the case of cheques. Secondly it cannot so easily be countermanded as a cheque either by the person purchasing it as by the drawer of a cheque or by the bank to which it is presented. In Malik Barkat Ali v. Imperial Bank of India(1) a Bench of the Lahore High Court has summed up this aspect neatly as follows: “Ordinarily a bank cannot stop payment of a draft unless there is some doubt as to the identity of the person presenting it as being or properly representing the person in whose favour it is drawn. This appears from Sheldon s Practice and Law of Banking 1931 page 156. The position of a bank in respect of its own draft is not quite the same as its position in regard to cheques drawn on it. Since it is taken on commitments of its own in favour of a third person at the instance of the purchaser…. On the other hand it does not appear that the purchaser is entitled to ask the issuing bank to stop payment on other grounds Such as matters relating to the consideration in respect of which the draft has been issued at his instance for this would often put the bank in an impossible position as when the purchaser of the draft is dissatisfied with some bargain which he has made with the person in whose favour the draft has been That is why demand drafts have been held not to be cheques See Bank of Baroda v. The Punjab National BankIn re Travancore National and Quilon BankThe Official Assignee v. Natesa PillaiThe Alliance Bank of Simla Ltd. v. The Amritsar BankThe Indian Hume Pipe Co. Ltd. v. Travancore National and Quilon Bank Ltd.and In re Calcutta Commercial Bank Ltd.The Alliance Bank of Simla Ltd. v. The Amritsar Bank(5) and other cases referred to above. But we are of opinion that if it is confined strictly to cases where a Bank issues a draft on its own branch and there is an express or implied agreement between the parties at the time of the issue of the draft by the bank on its own branch that the sole object of the issue of the draft is to transmit the money from one place to another for the express purpose of being paid to the person applying for the draft or some nominee of his it is supported by other rulings provided the bank has not actually parted with the money held by it as agent acting on the instructions of the principal thus terminating the relationship of principal and agent. The ruling confined to such strict limits cannot be said to be contrary to the other rulings being the direct result of the additional agreement express or implied proved beyond all possibility of doubt “that the banker was not to use the sum in question for his own purpose” as observed by Abdur Rahim J. in Official Assignee of Madras v. Rajam AiyarSinha J. referred to the above ruling of Achhru Ram J. and observed as follows: “Ordinarily when a draft is issued by a bank the holder is a creditor and his remedy is on the draft. The rights of the holder are defined by the Negotiable Instruments Act. It is difficult to see how the holder of the draft can have all the rights of a holder of a bill of exchange and the additional right to get the amount of the draft in preference to the general body of creditors. It is open to the payee to negotiate the draft. If the draft is negotiable it is difficult to see how there can be an agreement that the money represented by the draft would be paid to a specified person or would be spent in a specified manner. The fact that the draft has not in fact been negotiated does not affect the matter. If the draft was issued by the bank and accepted by the payee his rights are those of a holder of a bill of exchange. There is in such oases no specific appropriation of the funds in the hands of the drawee for meeting the demands of the Assuming it is possible for a person who secures a draft from the banker to agree that the money represented by the draft will be paid to a specified person or be spent in a specified manner it would require very strong evidence to prove such an agreement. Where a claim has been made before the Official Liquidators based on a draft the claimant should in my opinion be treated as an ordinary creditor and a mere statement in an affidavit filed in Court that the money was paid for being transmitted to another place and for being paid to a specified person would not suffice to hold that the holder was a preferential creditor and better evidence will have to be produced.” So Sinha J. too contemplates the possibility of such an additional agreement entitling the payee of the draft in cases where he is also the applicant for the draft and where there is an agreement between the bank and him that the draft is got purely and solely for transmitting the money to him to another place to preferential payment though he rightly urges that very strong evidence would be required to prove such an agreement and that a mere affidavit would not do. We are also of the same opinion. On principle we do not see anything against the validity of such an agreement strictly restricted as stated above and applied only to cases where the bank has not accounted for the money collected by it on behalf of the principal and covered by the draft by paying it out either to the principal or his nominee or by purchasing a draft on any other bank as per the instructions of the principal by paying the amount collected for that purpose. Such a restricted and exceptional case would only amount to something similar to engaging a man to carry coins or currency notes in specie paying him wages for such transmission the only difference being that the man engaged will be the bank and that the transmission charges will be much lower and that an instrument called the draft is used in the place of the coins or the currency notes. Of course there must be the clearest proof that the bank was not to use the sum for its own purpose and that the holder of the draft uses it only for the transmission of the money. Thus if the draft is negotiated by the person getting it in favour of another the ordinary incidence of law will at once operate and make the assignee only a mere creditor of the bank the relationship of principal and agent having terminated. It is well settled that where a cheque or a bill is entrusted to a banker for collection whether or not the entrustment is by a person who has an account with the bank the bank receives the cheque or the bill and collects the amount as agent of the person who entrusted the bank with the cheque or bill and that the fiduciary relationship of principal and agent subsists till the money so collected is actually remitted by the bank to its principal. See In re Ferrow s Bank Ltd.In re Brown Ex parte Plitt(2) and The Official Assignee Madras v. Rajam Iyerobserved as follows: “Where the debtor is to collect and remit there is confidence and trust. Where the debtor is to use and repay on demand there is no trust.” The important distinction between the two cases is the existence of the fiduciary relationship between the bank and the customer in the first case which entitles the customer to preferential payment in full on liquidation and the mere relationship of creditor and debtor in the second case. The second case will of course also exist where the relationship of principal and agent has terminated by payment of the money collected to the principal or his nominee or by purchasing a draft on another bank on his instructions. The mere fact that the money so collected by the bank has been mixed up with money of its own is immaterial so long as there is a fund on which the principal cestui que trust can lay his hands: See In re West of England and South Wales District Bank Ex parte Dale and Co.(1) and The Official Assignee Madras v. Rajam Iyeras follows: “The question does not appear to me to be what the rights of the defendants are but what the Tights of the bankrupt are in equity as well as law and whether a third person has an equitable right which prevents the Official Assignee from interfering. This is a perfectly well known and established principle of Bankruptcy Law and from the decided oases it appears that this principle has been extended to the oases of money advances for a special purpose and it appears to me that the present falls within the authority of the case before Lord Tenterden This is a new case but I think we must look to ascertain whether the bankrupts had an equitable right to use the money as against all persons. I think equity would have prevented them from using it had there been time to interfere and so the bankrupts bad not the equitable right but only a legal right to the possession of the money and therefore I am of opinion that the money would not pass to the assignees under the principle of Bankruptcy Law to which I refer.” So the crucial test is the right of the Hanuman Bank in equity to the money claimed by the appellants in these cases and whether the bank has only a legal right to the possession of the money and the appellants have an equitable right which prevents the Official Liquidator from interfering with those monies and annexing them to the general funds of the bank available for all creditors. The test laid down in The Alliance Bank of Simla Ltd. v. The Amritsar BankIn re Noakhali Union Bank Ltd.(7) and In re Calcutta Commercial Bank Ltd.(8) namely where the bank has collected money and issued the draft or drafts in compliance with the instructions of the party or in accordance with the ordinary course of business the payee of the draft should be treated as an ordinary creditor is in our opinion not quite accurate and is subject to the exception created by a special express or implied agreement referred to already by us though we are not prepared to go so far as Achhru Ram J. did in In the matter of New Bank of India Ltd.and the new relationship of creditor and debtor took its place. But merely purchasing drafts on their own bank at Madras in the name of the appellants as per the instructions of the appellants to remit by demand drafts on Madras and receipt of such drafts by these appellants did not in our opinion terminate the relationship of principal and agent. No doubt as Mr. Swaminathan urged the collections made on behalf of the appellants were mixed up with the other funds of the bank by such purchase of the drafts but that will not do away with the relationship of principal and agent as already stated as the funds can be traced from the funds of this bank with the liquidator. It is also significant that the appellants in these cases presented their drafts to the Hanuman Bank Madras for payment and that they were returned unpaid with the obviously disingeneous endorsement “Awaiting funds. Present again” and the doors of the bank were closed when presentation was made again as requested. Surely equity will compel this bank to honour the draft issued by itself on itself and will not allow it to escape its responsibility by this kind of tactics. The essence of payment by cheque or draft on oneself is the understanding that it will be honoured. Otherwise it will be like giving a worthless piece of paper as representing a currency note or valuable security. In view of this finding we allow O.S.A. Nos. 85 and 949 set aside the order of Rajagopalan J. dismissing Appln. Nos. 454 and 12749 regarding the claim of the appellants for the payment of their dues under the drafts in full in preference to other creditors and allow the claim of Suganchand & Co. to the payment of Rs. 3235 2 6 in full by the Official Liquidator of the Hanuman Bank with interest at 6% per annum from 10 7 1947 till date of payment and costs throughout and direct payment of Rs. 1540 9 0 and Rs. 57 7 0 covered by the two dishonoured drafts in full to the Indian Mutual Life Association by the Official Liquidator of the Hanuman Bank with interest at 6% per annumfrom 10th July 1947 till the date of payment and costs Now we come to O.S.A. 849. This appeal stands on a different footing because of the different facts and has to be rejected in law. In this case the appellant the Canara Bank Ltd. had asked the Hanuman Bank Kumbakonam to collect a bill for Rs. 1000 sent to it and to remit the proceeds to them by a demand draft on Erode and the Hanuman Bank Kumbakonam had collected the bill and sent a demand draft on the Hindu Bank Ltd. Karur for Rs. 999 11 0 after deducting the commission of as. 5 to the Canara Bank and thus terminated the relationship of principal and agent as the draft complied with the directions of the Canara Bank and was issued on another bank namely the Hindu Bank Karur having nothing to do with the Hanuman Bank and the collected amount had been fully spent as per the directions of the principal in purchasing a draft and sending it. No doubt the Canara Bank had not specifically named the bank on which the demand draft was to be sent. But the sending of the demand draft on another bank in Karur would meet the requirements of the request by the principal. In The Alliance Bank of Simla Ltd. v. The Amritsar Bankthe Alliance Bank of Simla Delhi branch sent two bills for collection to the Gwalior branch of the Amritsar Bank and directed the Amritsar bank Gwalior to send “your drafts on realisation” and the Amritsar bank realised the the money and remitted it less commission by two drafts on the Delhi branch of the People s Bank Ltd. and the People s Bank Ltd. and the Amritsar Bank both went into liquidation before the drafts could be cashed. A Bench of the Lahore High Court consisting of Rattigan and Shadi Lal JJ. held that the Alliance Bank could rank in respect of these dishonoured drafts only as a creditor along with the other creditors and receive payment pari passu along with the other creditors and could not claim preferential payment in full. The facts here are similar and we are satisfied that the decision in the Alliance Bank case is sound though we may not agree with the reasoning therein. We hold in this case that in law and equity the Canara Bank is entitled in respect of this dishonoured draft only to be treated as a creditor and to receive payment pari pissu along with the other creditors of the Hanuman bank. The fact that the Canara Bank stated in their letter to the Hanuman Bank Kumbakonam “We shall thank you to collect the amount thereof in trust for us” will make no difference as in such a case of principal and agent the trust is always there in the fiduciary relationship imposed by law whether it is stated expressly or not. It is significant that the Canara Bank was paid in full by the Official Liquidator of the Hanuman Bank two sums of Rs. 106 9 6 and Rs. 105 5 3 collected by the Hanuman bank where the instructions of the Canara Bank were “We shall thank you to collect the amount thereof and remit the proceeds to our Erode office under advice to us”. That was because no draft was purchased by the Hanuman Bank on another bank and the collections utilised. No doubt no one can justify the dishonouring of the draft issued by the Hanuman Bank to the Canara Bank for Rs. 999 11 0 in favour of the Hindu Bank Karur or the disingeneous endorsement “No advice. Present again”. It may be as the learned Counsel for the appellant in this appeal urged that the appellant may have a remedy against the Hindu Bank Karur for dishonouring the draft drawn on it. But we are not concerned with that in this appeal but only with the request of the appellant in this appeal to be treated as a person entitled to payment in full as a preferential creditor of the Hanuman Bank Ltd. In this view this appeal deserves to be and is hereby dismissed with costs. The Official Liquidator will of course meet the costs of the Bank in these appeals and also pay the costs in the two appeals decided against the Hanuman Bank from the Bank s assets. Advocate s fee fixed at Rs. 200 in O.S.A. Nos. 99 and 849and at Rs. 100 in O.S.A. No. 849.

A child has an undisputed right to be maintained by his father till he attains majority: Supreme Court of India

The respondent-husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. Shah & Hon’ble Justice A.S. Bopanna in the matter of Neha Tyagi vs Lieutenant Colonel Deepak Tyagi [CIVIL APPEAL NO. 6374 OF 2021] on 01.12.2021. The facts of the case were that the petitioner and the respondent got married on 16.11.2005, out of wedlock a son Pranav Tyagi was born on 23.2.2008. Thereafter, some disputes arose between the appellate and the respondent, and the appellate filed several complaints including extra-marital affairs against the respondent before his employer- Army Authorities in which he was exonerated by the competent authorities. Subsequently, the respondent-husband applied before the Family Court for Divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. The same was granted by the Family Court and upheld by the High Court. Thus, the respondent-husband stopped paying maintenance to the appellate-wife. Thus, the instant appeal is preferred by the appellate-wife on the contention that she has no source of income and therefore it is the liability of the respondent-husband to pay her allowances to help her maintain herself and their son. The Hon’ble Supreme Court observed that “The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house in Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education, etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of the marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December 2019.” Finally, the Hon’ble Supreme Court disposed of the appeal with a direction to the respondent-husband/father to pay maintenance of Rs 50,000/- per month with effect from December 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month from December 2019 to November 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the petitioner and the respondent got married on 16.11.2005, out of wedlock a son Pranav Tyagi was born on 23.2.2008. Thereafter, some disputes arose between the appellate and the respondent, and the appellate filed several complaints including extra-marital affairs against the respondent before his employer- Army Authorities in which he was exonerated by the competent authorities. Subsequently, the respondent-husband applied before the Family Court for Divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. The same was granted by the Family Court and upheld by the High Court. Thus, the respondent-husband stopped paying maintenance to the appellate-wife. Thus, the instant appeal is preferred by the appellate-wife on the contention that she has no source of income and therefore it is the liability of the respondent-husband to pay her allowances to help her maintain herself and their son. The Hon’ble Supreme Court observed that “The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house in Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education, etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of the marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December 2019.” Finally, the Hon’ble Supreme Court disposed of the appeal with a direction to the respondent-husband/father to pay maintenance of Rs 50,000/- per month with effect from December 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month from December 2019 to November 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that “The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house in Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education, etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of the marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December 2019.” Finally, the Hon’ble Supreme Court disposed of the appeal with a direction to the respondent-husband/father to pay maintenance of Rs 50,000/- per month with effect from December 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month from December 2019 to November 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court disposed of the appeal with a direction to the respondent-husband/father to pay maintenance of Rs 50,000/- per month with effect from December 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month from December 2019 to November 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother.

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

Mere recovery of money cannot prove the charge of the prosecution against the accused under Section 7 of the Prevention of Corruption Act, 1988: Chhattisgarh High Court

Recovery by itself is insufficient to establish the prosecution’s case against the defendant. It is emphasised that in order to establish the accusation, it must be demonstrated beyond a reasonable doubt that the accused knowingly took money knowing it was a bribe. The mere possession or recovery of money notes is insufficient to create such an offence in the absence of proof of demand for illicit satisfaction. The judgment was passed by The High Court of Chhattisgarh in the case of Pramod Kumar & Ors. V. State of Chhattisgarh [Criminal Appeal No.829 of 2003] by a Single Bench consisting of Hon’ble Shri Arvind Singh Chandel. The facts of the case are that a resident of the said village had demolished the appellant’s old house and raised a new construction there. For raising the new construction, he had purchased some wood from a government depot and some wood was used by him available from his old demolished house. The Appellant told Complainant that the wood used by him for raising the new construction of his house was stolen by him from the forest. Allegedly, the Appellant demanded a bribe of Rs.5,000 for not making a forest case against the Complainant. Ultimately, the Appellant consented to accept a bribe of Rs.1,000. Since the Complainant did not want to give a bribe to the Appellant, Hence, he submitted a written complaint. Learned Counsel for the Appellant submitted that the Trial Court has convicted the Appellant without there being sufficient and clinching evidence against him on record. It was argued that in the transcription, there is nothing to show that there was any demand by the Appellant for a bribe. Regarding the written complaint made by the Complainant, it was argued that does not bear the signature of the Complainant and he admitted the fact that the complaint was not written by him. Therefore, examination of the author of the complaint is necessary. Further, the counsel argued that mere recovery of the tainted money does not constitute an offence against the Appellant. Learned Counsel for the Respondent supported the impugned judgment.

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.4511 Judgment Reserved on : 17.3 . 2021 Judgment Delivered on : 10.6.2021 1. Sheshuraj Marian S o E.J. Marian age 35 years 2. E.J. Marian S o Late A. Marian age 63 years Their names are deleted vide order dated 25.11.2019 3. Smt. Elisabeth Merry Marian W o E.J. Marian age 60 years 4. Ku. Velankanni Merry Marian D o E.J. Marian age 31 years All R o Panchsheel Nagar Charoda Police Station Bhilai District Durg Chhattisgarh Appellants State of Chhattisgarh through the Arakshi Kendra Purani Bhilai District Durg Chhattisgarh Respondent For Appellants Ms. Sharmila Singhai Advocate Shri Roshan Dubey Panel Lawyer Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT During pendency of this appeal Appellants No.1 and 2 died. Vide order of this Court dated 25.11.2019 their names have been deleted from the array of cause title and the instant appeal so far as it relates to them has abated. The appeal is directed against judgment dated 14.6.2011 passed Facts of the case in brief are that name of the deceased is Smt by 4th Additional Sessions Judge Durg in Sessions Trial No.310 whereby each of the Appellants have been convicted and sentenced as under: Under Section 304B of the Indian Penal Code Rigorous Imprisonment for 7 Celistina. Her marriage was performed with Appellant No.1Appellant No.3 and Appellant No.4 are father in law mother in law and sister in lawof the deceased respectively. In the intervening night of 26th and 27th of July 2009 Celistina died due to fire burn at her matrimonial house. Morguewas lodged by Appellant No.1. Inquest proceedingwas conducted. Post mortem examination over the dead body of Celistina was conducted by Dr. Badri Narayan Dewangansister of the deceased made a written complainton the basis of which First Information Report Ex.P8) was registered. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. It is alleged that after a few days of the marriage the deceased was subjected to cruelty by the Appellants for demand of Rs.1 00 000 for purchase of a car. On completion of the investigation a charge sheet was filed. The Trial Court framed charges. To rope in the accused Appellants the prosecution examined as many as 9 witnesses. Statements of the accused Appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the guilt pleaded innocence and false implication. 2 witnesses were examined in defence. On completion of the trial the Trial Court convicted and sentenced the Appellants as mentioned in 2nd paragraph of this judgment Hence this appeal Learned Counsel appearing for the Appellants submitted that the Trial Court convicted the Appellants without there being clinching and sufficient evidence on record. It was further submitted that at the time of inquest proceeding the family members of the deceased i.e. her father and sister were present but at that time and thereafter also they did not make any complaint regarding subjection of the deceased to harassment for demand of dowry After 5 months of the incident the written complaintwas lodged by the sister of the deceased. Delay in lodging the First Information Report has not been properly explained. It was further submitted that S. Babu Rao father of the deceased categorically admitted the fact that after the marriage the deceased was happy and there was no demand for dowry. S. Roseline Rao PW5) sister of the deceased has also admitted that since January 2009 the deceased never complained of any demand for dowry Suddenly in the month of May 2009 the deceased would have complained of any harassment for demand of dowry is suspicious It was further submitted that on 28.7.2009 S. Babu Rao father of the deceased made a written submissionto the concerned Station House Officer which does not contain any complaint that the deceased was ever subjected to cruelty for demand of dowry. But the Trial Court has not appreciated this fact and convicted the Appellants. According to Learned Counsel appearing for the Appellants since “soon before her death” the deceased was subjected to cruelty is not established the conviction of the Appellants is not sustainable. On the contrary Learned Counsel appearing for the State supported the impugned judgment of conviction and sentence. I have heard Learned Counsel appearing for the parties and perused the entire record of the Trial Court with utmost circumspection. In AIR 2014 SC 2555 it was observed by the Supreme Court as under: “19. The expression “soon before her death” used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal & others v. State Delhi 2003) 8 SCC 80 :which reads as under: Section 304 B IPC which deals with dowry death reads as follows: “304 B. Dowry death.(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death Explanation.—For the purpose of this sub section dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act 1961Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry. In order to attract application of Section 304 B IPC the essential ingredients are as follows: The death of a woman should be caused by burns or bodily injury or otherwise than under a Such a death should have occurred within seven years of her marriage She must have been subjected to cruelty or harassment by her husband or any relative of Such cruelty or harassment should be for or in connection with demand of dowry Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113 B of the Evidence Act is also relevant for the case at hand. Both Section 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by Dowry Prohibition Amendment) Act 486 with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows “113 B. 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 had 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 death Explanation.—For the purposes of this section dowry death shall have the same meaning as in Section 304 B of the Indian Penal Code 7 SCC 724 :1 SCC 202 it was further observed by the Supreme Court thus: If Section 304 B IPC is read together with a Section 113 B of the Evidence Act comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years form her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband the case would squarely come under “dowry death” and there shall be a presumption against the husband and In this case we fnd that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no fnding in that regard. This defciency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304 B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. SCC 118) Since the prosecution failed to prove that aspect the conviction as recorded cannot be maintained.” Further in 1 SCC 101 it was observed by the Supreme Court as follows: “32. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution frst spell out the ingredients of the ofence of Section 304B as in Shindo v. State of Punjab 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana 16 SCC 640. In the latter pronouncement this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the ofence of dowry death under Section 113B of the Act. It referred to with approval the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao 1 SCC 217 to the efect that to attract the provision of Section 304B of the Code one of the main ingredients of the ofence which is required to be established as that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.” Now I shall consider the evidence of the instant case in the light of above view taken by the Supreme Court. In the case in hand it is not in dispute that the deceased was married with Appellant No.1 on 8.10.2008 and she died at her matrimonial house due to burn injuries i.e. in an unnatural circumstance in the intervening night of 26th and 27th of July 2009. Her death was within 7 years of the marriage. Now it needs to be considered whether “soon before her death” she was subjected to cruelty or harassment by the Appellants for demand of dowry. In this regard the statements of S. Babu Raoand S. Roseline Raofather and sister of the deceased respectively are required to be appreciated In their Court statements S. Babu Raoand S. Roseline Rao PW5) deposed that in the month of May 2009 they along with the wife of S. Babu Raohad gone to Chennai to visitfurther deposed that there the deceased had told her that Appellant No.1 had a love relationship with a girl and on being asked in this regard he used to beat her. She further deposed that the deceased was being subjected to cruelty for demand of Rs.1 00 000 for purchase of a car. She further deposed that she had heard that Appellant No.1 was impotent. S. Babu Raodeposed that he had met with the deceased at Chennai in the evening of that day. At that time the deceased had complained him of her mother in law Appellant No.3 that she was not good at her and she used to harass her. This witness also deposed that he had come to know that Appellant No.1 had a love relationship with a girl and on being asked in this regard he used to beat the deceased. This witness further deposed that he had also come to know that Appellant No.1 was impotent. In paragraph 13 this witness admitted that till the deceased resided at her matrimonial house this witness was in contact with her on mobile phone. He further admitted that in the month of January 2009 the deceased had come to his house for about 15 days and at that time she had told him that she was happy at her matrimonial house and all the family members of her matrimonial house were good at her. This witness further admitted the fact that the application was signed by him. From perusal of Ex.D3 it appears that the fact relating to subjection of the deceased to cruelty or harassment for demand of dowry is not mentioned therein. Though this witness deposed that no such application was given by him to police he has not explained why how and when he signed the applicationfor bringing the belongings of the deceased but on 5.11.2009 or before that no complaint was made against the Appellants in police station. S. Roseline Raoin paragraph 12 of her cross examination deposed that in the month of January 2009 when the deceased had come to their house at that time she had not made any complaint regarding demand of dowry. In paragraph 16 she further admitted that she had also gone to Durg along with her father and Advocate Ramesh for bringing the belongings of the deceased. But on that day or prior to that they had not made any report against the Appellants. The written complaintwhich was lodged by S. Roseline Rao PW5) bears the date of 21.12.2009 and this complaint was typed and printed out from a computer. In paragraph 16 of her cross examination S. Roseline Rao admitted the fact that the written complaintwas prepared by whom was not known to her. On a minute examination of the above statements of S. Babu Rao PW4) and S. Roseline Rao father and sister of the deceased respectively it is clear that after 5 months of the death of the deceased the written complaintdated 21.12.2009 was lodged by S. Roseline Raoand S. Roseline Raoit is also clear that at the time of inquest proceeding both were present but no complaint was made by any of them at that time nor even thereafter against the Appellants for subjecting the deceased to cruelty or harassment for demand of dowry. Instead S. Babu Raofather of the deceased made the applicationaddressing the same to Station House Officer but even in Ex.D3 he did not mention any fact regarding subjection of the deceased to cruelty or harassment for demand of dowry. Though S. Babu Rao has not been explained by him. From the admissions made by both these witnesses it is also clear that they had gone to Durg along with Advocate Ramesh on 5.11.2009 for bringing the belongings of the deceased but on that day also none of them made any complaint against the Appellants. Had there been really a complaint of subjection of the deceased to cruelty or harassment for demand of dowry they would have raised a complaint in this regard on 5.11.2009 or prior to that. But the complaint was made on 21.12.2009 vide Ex.P5. From the admissions made by the above two witnesses it is also clear that in the month of January 2009 when the deceased had visited their house till that time no complaint was made by the deceased regarding demand of dowry It is the admission of S. Babu Raofather of the deceased that he was in contact with the deceased on mobile phone but he never raised any complaint regarding any demand of dowry. In the month of May 2009 at Chennai also the deceased did not make any complaint to his father regarding her subjection to cruelty or harassment by the Appellants. Therefore “soon before her death” the deceased was subjected to cruelty or harassment for demand of dowry is suspicious. In the circumstances conviction of the Appellants under Section 304B of the Indian Penal Code is not sustainable and they are entitled to get benefit of doubt. Consequently the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charge framed against them. Sd (Arvind Singh Chandel JUDGE

Each party should get a fair opportunity to cross examine the concerned witness, after which they are not allowed to raise any doubts upon the credibility of the witness: Supreme Court

“If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross-examination, for which opportunity was granted to the respondents once”, this remarkable stand was forwarded by the Honorable SC in the Civil Appeal case of Anita Sharma & Ors. V. The New India Assurance Co. Ltd. & Anr., [Civil Appeal No. 4010-­4011 of 2020], chaired by Hon’ble Justice Mr. Surya Kant and Hon’ble Mr. Justice Aniruddha Bose. Sandeep Sharma (deceased), was a resident of District Sikar in Rajasthan. He was traveling in a car bearing registration no. UP 65 AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of 25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2) and 2 other occupants. Sanjeev Kapoor, who was also its owner, was driving the car when at about 10:20 PM near village Atroli, a truck coming from the opposite side struck the car as a result of which all the occupants suffered injuries. Sandeep along with all the other injured occupants were immediately talked to the nearest hospital in Ghazipur at around 11:55 PM but was then referred to the institute of medical science and SS. Hospital, BHU Varanasi on 26.03.2009. It appears that   Sandeep kept experiencing one after another medical complication, succumbing to which he eventually died on 10.12.2009. At the time of death, the deceased was aged 34 years and was an income tax assessee with an EPF (Employees   Provident   Fund) account. He was employed in Mumbai at Kelvin ESS Vee Textiles as a Sales Officer on regular basis. He left behind a widow, two minor children and a mother; all of whom were solely dependent on him. Sandeep’s dependents filed a claim petition for Rs 60,94,000 on 26.08.2010 alleging inter alia that the reason for his death was the injuries which he suffered in the accident dated 25.03.2009,  which occurred due to the rash and negligent driving of Sanjeev Kapoor who was the owner-cum-driver of the car in which Mr. Sandeep was traveling. Sanjeev along with the insurer of the car (insurance company) was impleaded as party respondents. Mr. Sanjeev accepting the fact that the death of the occupant Mr. Sandeep was a result of the accident but he believed that the accident which was caused was not due to his rash driving but due to the truck which struck them, he further added that as all of the occupant traveling in the car were severally shook and injured by the truck, none of them were able to note the number of the truck which made a hasty get-away towards Ghazipur. In reaching its verdict, the Tribunal relied upon the statement of the eye­witness Ritesh Pandey (AW­3), according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle & collided head­-on   against the oncoming truck.   The Tribunal,   thus,   assigned liability for the accident upon the respondents and partly allowed the   Claim   Petition with compensation of rupees 16,08,000. Both the insurance company and the appellant­ claimants filed their respective appeals before the HC. Through judgment dated 23.07.2018, the High Court set aside the Tribunal’s award & dismissed the claim petition for the reason that 1st, the eye-witness had failed to report the accident to the jurisdictional police. The court believed that the claimants might have produced the fake witness to seek compensation. Secondly, the FIR had been lodged by the owner­-cum-driver, Sanjeev Kapoor, who would not have done so had he been at fault or driving rashly. The original claimant challenges this decision of the HC of Rajasthan, dated 23.07.2018, in the honorable SC along with the prayers which consisted of accepting the tribunal court’s decision and enhancement of the compensation.

These two appeals which have been heard through video conferencing are directed against the judgment dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Co. Ltd. against the Motor Accident Claims Tribunal’s award dated 01.09.2012 was by the appellant­claimants for enhancement of compensation was and two other occupants. Sanjeev Kapoor who was also its owner 11:55PM but was subsequently referred to the Institute of Medical Sciences and S.S. Hospital BHU Varanasi on 26.03.2009 considering the severity and multiplicity of his injuries. Although he was that Sandeep kept experiencing one after another medical complications and remained hospitalized at the Jain Hospital in Jaipur and later the Joshi Nursing Home at Sikar. His injuries income tax assessee with an Employees Provident Fund and the insurer of the car ­ New India Assurance Co. Ltd. were The insurance company in its separate written statement took information report the accident was caused by an unknown truck which hit the car No. UP­65­AA­7100 and therefore the claim petition The factual averments made in the Claim Petition were denied for the eye­witness Ritesh Pandey according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Tribunal thus assigned liability for the accident upon the respondents and partly allowed the Claim Petition with a compensation of Rs. 16 08 000 was registered on the basis of information furnished by one Pradeep Kumar Aggarwal son of Bal Krishan Das Aggarwal a resident of District travelling in the Wagon R Car No. UP­65­AA­7100 along with three which was being driven rashly and at a fast speed struck against the could not be noticed as it was dark. The car was badly damaged other. The informant himself had not witnessed the accident and hand relied upon the contents of the FIR and the ‘Investigation 13. At this juncture we may refer to the statement of Ritesh Pandey business dealings with the deceased or his family. He has deposed overtook him at a very high speed. He has further deposed that a truck coming from the opposite side collided with the car. Various deposed that he took all the four injured persons to the District Medical Sciences and S.S. Hospital BHU Varanasi. 14. Most importantly the only question asked to this witness in examination. While the Tribunal believed Ritesh Pandey and accepted the claim petition in part the High Court for the reasons and not by Ritesh Pandey leave no persons it is quite natural that the police It is commonplace for most people to be hesitant about being the injured to the hospital. The statement of AW­3 therefore acquires significance as according to him he brought the injured in his car to the hospital. Ritesh Pandeyacted as a good samaritan and a the independence and benevolence of AW­3. Without any personal injured to the hospital for immediate medical aid could not have Court ought not to have drawn any adverse inference against the police had themselves reached the hospital upon having received information about the accident there was perhaps no occasion for 18. Unfortunately the approach of the High Court was not sensitive was by way of disbelieving the testimony of Umed Singh PW 1 to reach the doctor s chamber in order to ensure that an Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court unfortunately was not sensitised enough to appreciate the 15. In a situation of this nature the Tribunal has rightly taken a touchstone of preponderance of probability. The standard of proof witness or confront him with their version despite adequate They did not even suggest the witness that he was siding with the 20. The importance of cross­examination has been elucidated on “278. Section 137 of the Evidence Act defines what cross­ witness on oath in examination­in­chief the objects of which and the questions to be addressed in the course of cross­ examination are to test his veracity to discover who he is 21. Relying upon Kartar Singhin a MACT case this Court in Sunita v. Rajasthan State Road Transport Corporation3 considered the effect of non­examination of the pillion rider as a “30. Clearly the evidence given by Bhagchand withstood the evidence. In turn the High Court has failed to take note of the absence of cross examination of this witness by the respondents leave alone the Tribunal s finding on the same and instead absence from the list is fatal to the case of the appellants. This Court s observation and claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once cast on the veracity of the witness the same should have come out in cross examination for which opportunity was 32. The High Court has not held that the respondents were successful in challenging the witnesses version of events despite said witness was cross examined by the respondents but by selectively overlooking the deficiencies in the respondent s case 22. Equally we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of examining evidence in accident claim cases ought not to be to find fault with non­examination of some best eye­witnesses as may happen in a criminal trial but instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz4 up by the claimants was required to be decided by the learned and certainly not on the basis of proof beyond reasonable one of the contesting respondents in the Claim Petition who along in the result of the case. If the owner­cum­driver of the car were taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement further suggests that he was himself at fault. The High Court therefore ought 24. Further little reliance can be placed on the contents of the FIR First the author of the FIR that is Praveen Kumar Aggarwal does not lodged two days after the accident on 27.03.2009. The FIR recites BHU Varanasi for treatment even though as per the medical report this took place only on 26.03.2009 the day after the accident Therefore the belated FIR appears to be an afterthought attempt to the High Court to disbelieve Ritesh Pandey AW­3 on the other hand 25. Adverting to the claimants’ appeal for enhancement of raised on their behalf as to how the compensation assessed by the Tribunal was inadequate except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v Pranay Sethi5 the claimants are entitled to an increase of 40 the High Court is set aside and the appellants are held entitled to compensation as awarded by the Tribunal besides 40% addition in the annual income of the deceased towards ‘future prospects’. The Motor Accident Claims Tribunal Sikaris directed to re­ held entitled to interest @ 8.5% as per the Tribunal’s award on the entire amount of compensation. The Tribunal shall re­calculate the compensation within one month and the insurance company shall

The Court cannot discard the whole evidence given by witnesses merely because it’s exaggerated: Supreme Court

A Court of law, being mindful of such distinction is duty bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. This was said in the case of Achhar Singh v State of Himachal Pradesh [CRIMINAL APPEAL No. 1144 of 2010] by Justice Surya Kant, J in the Supreme Court of India. The facts of the case date back to 12.05.2010/27.05.2010 when the High Court set aside the acquittal order passed by the Sessions judge. The two appellants are convicted for offences under Sections 452, 326 and 323 of IPC and Sections 302 and 452 IPC. Aggreived by the judgment of the High Court, the appellants filed an appeal The appellants contended that the statements made by the prosecution witnesses contained exaggerations and therefore it was wrong to convict him on the basis of such statements. According to the FIR, the deceased died owing to a single axe blow inflicted by the accused and the post­mortem report also showed only one head injury on her person. However, three prosecution eyewitnesses, deposed that the first accused gave two axe blows on her head and then co ­accused also hit the also hit the deceased’s left ear with an axe twice. The State contended that the credibility of the witnesses cannot be questioned merely because they were related to the deceased or because there were minor discrepancies or exaggerations. Inconsistent   evidence   by   the prosecution witnesses against one accused cannot be capitalised to give the benefit of doubt to another. The Court after analysing the contentions from the appellant side, opined that “Cambridge Dictionary defines “exaggeration” as “the fact of making something larger, more important, better or worse than it really is”. Merriam¬Webster defines the term “exaggerate” as to “enlarge beyond bounds or the truth”.  These   expressions   unambiguously   suggest   that   the genesis of an ‘exaggerated statement’ lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every exaggeration, therefore, has the ingredients of ‘truth’ Oxford   Concise   Dictionary   states   that   “false”   is “wrong;   not   correct   or   true. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it”. Referring to Hari Chand v. State of Delhi (1996) [9 SCC 112], the court said that “while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff”. Furthermore, the Court said that “It is equally well settled that there is no bar on the High Court’s power to re­appreciate evidence in an appeal against acquittal. The CrPC does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused”. Hence, the Court upheld the conviction order of High Court”.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.42718 Arising Out of PS. Case No. 218 Year 2013 Thana KARAKAT District Rohtas Shivjee Sah Son of Late Ram Sakal Sah 2. Manju Devi Wife of Sri Sheojee Sah Both resident of Village Jaishree P.S. Karakat District Rohtas The State of Bihar ... Appellant s ... Respondent s CRIMINAL APPEALNo. 1219 Arising Out of PS. Case No. 218 Year 2013 Thana KARAKAT District Rohtas Prashant Kumar Son of Shivjee Sah Resident of Village Jayshree P.S. Karakat District Rohtas The State of Bihar ... Appellant s ... Respondent s Dr. Amarendra Kumar Advocate. In CRIMINAL APPEALNo. 42718 For the Appellant s Mrs. Surya Advocate. For the Informant For the State In CRIMINAL APPEALNo. 1219 For the Appellant s For the Informant For the State CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Mr.Vikram Deo Singh Advocate. Mr. Mithilesh Kumar Singh Advocate. Mr.Sujit Kumar Singh APP. Mr. Mithilesh Kumar Singh Advocate. Mr. Sujit Kumar Singh APP Date : 15 04 2021 Appellants Shivjee Sah and Manju Devi are parents of appellant Prashant Kumar. All the appellants faced trial for offence under Section 304 B of the Indian Penal Code before learned Fast Track Court I Rohtas Sasaram in Sessions Case Patna High Court CR. APPNo.42718 dt.15 04 2021 No. 814 arising out of Karakat P.S. Case No. 2113. The appellants were found guilty for the aforesaid offence by judgment dated 25.09.2018. Appellant Prashant Kumar was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years by the order of sentence dated 29.09.2018. The judgment of conviction and order of sentence are challenged in these appeals. 2. The prosecution case as disclosed in the written report of PW 3 Ramesh Prasad Gupta is that Namita Devi the sister of the informant was married with appellant Prashant Kumar on 09.12.2012. After marriage Namita went to her sasural in village Jayshree P.S. Karakat District Rohtas. After few days Namita left for Visakhapatnam along with her husband Prashant where Prashant was a locomotive driver From Visakhapatnam Namita used to inform that she was being tortured even by physical assault by the husband for dowry. On request of Namita her mother gave a gold chain to Prashant however torture continued On 20.09.2013 Namita along with Prashant came to the house of the informant in village Dihri. Namita stayed there at and Prashant left to appear in some examination at Patna High Court CR. APPNo.42718 dt.15 04 2021 Patna. After return from Patna on 23.09.2017 Namita and appellant Prashant left for village Jayshree. On 24.09.2013 Namita telephonically informed that her husband and other family members have bitterly assaulted her and have threatened to kill her. Thereafter mother of Namita tried to contact her on phone but no one was receiving the call. In the night at about 09:20 a call came that Namita is serious. Again at 09:30 a call came that Namita is dead now. According to informant for non payment of money the in laws eleven in number named in the F.I.R. allegedly committed murder of Namita by throttling her. 3. After investigation of the case the police submitted chargesheet against the appellants aforesaid and investigation against the rest was kept pending 4. Mr. Vikram Deo Singh learned counsel for the appellant Prashant Kumar would contend that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. For the first time during trial some of the prosecution witnesses claimed that there was further demand of a motorcycle. Learned counsel next contends that PW 2 Suresh Kumar Gupta and PW 4 Umesh Kumar Gupta are full brothers of the informant as well as of deceased Namita and these Patna High Court CR. APPNo.42718 dt.15 04 2021 witnesses have not stated that there was any further demand after fulfillment of demand of gold chain. PW 4 has not stated at all that there was any demand of dowry and torture for non fulfillment of the demand. The prosecution case suffers from non corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. The doctorhas found the case of ‘hanging’. Learned counsel contends that there is complete lack of evidence that Namita was being tortured by her in laws at any point of time due to non fulfillment of dowry demand. Learned counsel contends that specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence if any cannot be relied upon Dr. Amrendra Kumar learned counsel for the appellants Shivjee Sah and Manju Devi contends that the prosecution has not alleged about any demand of dowry against these appellants specifically nor there is any evidence that these appellants were involved in torture to Namita 5. Mr. Sujit Kumar Singh learned counsel for the State respondent contends that plurality of the witness on any specific point is not the requirement of law. PW 3 and PW 5 Patna High Court CR. APPNo.42718 dt.15 04 2021 have specifically deposed that even after fulfillment of earlier demand of gold chain further demand of motorcycle continued The victim died within a year of her marriage in unnatural circumstances in the matrimonial house. Hence the burden was on the appellants to dispel the presumption that this was not a case of dowry death altogether seven witnesses 6. To prove the charge the prosecution examined PW 1 Ravishankar is a hearsay witness as he stated that he heard about death of Namita from the informant and about demand of dowry and torture from the parents of Namita. PW 3 Ramesh Prasad Gupta supported what he had stated in the written report with improvement that after fulfillment of demand of gold chain and locket a motorcycle was being demanded after 2 3 months of the fulfillment of the aforesaid demand. To the same extent PW 5 Chinta Devi the mother added to the allegation by saying that she carried a gold chain and locket to Visakhapatnam and handed over to Prashant and returned back. Later on demand of motorcycle started. PW 3 and PW 5 were confronted with their statement under Section 161 Cr.P.C. and attention of the Patna High Court CR. APPNo.42718 dt.15 04 2021 investigating officerwas also drawn that the aforesaid witnesses had not made any statement before him regarding demand of motorcycle after fulfillment of the demand of gold chain and locket. If such improvement of allegation is allowed at the belated stage of trial it would open a pandora gate to improve the prosecution allegation and make any suitable allegation against the accused to be harassed. PW 2 Suresh Kumar Gupta and PW 4 Umesh Kumar Gupta are also full brothers of the informant. PW 2 does not say that after fulfillment of demand of gold chain there was further demand of motorcycle. Moreover this witness was confronted with his other statements as prosecution witness to that of his statement before the police under Section 161 Cr.P.C and attention of the investigating officer was also drawn to that PW 4 Umesh Kumar Gupta who is full brother of the deceased does not speak at all about any demand of dowry and torture to Namita for non fulfillment of the aforesaid demand. PW 4 is a family member of the deceased and he is not a hostile witness. 7. In Raja Ram V. The State of Rajasthan reported in5 SCC 272 the Hon’ble Supreme Court said that if a witness is not declared hostile by the prosecution the Patna High Court CR. APPNo.42718 dt.15 04 2021 defence can rely upon the evidence of such witness and it would be binding on the prosecution. 8. The aforesaid view was reiterated in Mukhtiar Ahmed Ansari V. The State reported in 2005) 5 SCC 258. Paragraphs 29 to 31 of the judgment are being reproduced below “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He however did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead it supported the defence. The accused hence can rely on that 30. A similar question came up for consideration before this Court in Raja Ram V State of Rajasthan No.42718 dt.15 04 2021 the defence to rely on the evidence of the doctor and it was binding on the prosecution 31. In the present case evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case the accused can rely on that evidence.” 9. Thus the evidence of PW 2 and PW 4 would go against the prosecution case and the accused would be entitled to rely on that which makes the prosecution case doubtful. There is no prosecution witness who claims to have seen the appellants committing any torture against the deceased or making any demand from the deceased or any other family 10. Coupled with the aforesaid drawback in the prosecution evidence the appellants have come up with a probable case that at the time of leaving for Visakhapatnam by train the deceased handed over her ornaments to her mother as mother suggested that it would not be safe to carry ornaments on train journey. When she returned from Visakhapatnam and was in her mother’s house on 20.09.2013 she asked for her ornaments from her mother and bhabhi and for not returning the Patna High Court CR. APPNo.42718 dt.15 04 2021 ornaments a quarrel took place. The deceased was very furiated and had locked herself inside the room but the appellant Prashant who was present there anyhow pacified the matter and took his wife to his own village and on the very same night she committed suicide by hanging herself. The aforesaid evidence has come as suggestion to the prosecution witnesses as well as in the testimony of DW 1 Shyama Devi DW 2 Satendra Chaudhary DW 4 Ritesh Kumar and DW 5 Prashant Kumar the appellant himself. In his statement under Section 313 Cr.P.C. the appellant specifically made disclosure of the aforesaid DW 3 Gopal Chand Sawant is Chief Manager of Life Insurance Corporation of India. He has proved the two certificates of life insurance one taken in the name of appellant Prashant Kumar in which deceased Namita Devi is nominee and another taken in the name of Namita Devi in which appellant Prashant Kumar is nominee. Both the policies were taken on 11. To prove the charge under Section 304 B IPC only factum of unnatural death in matrimonial home within seven years of marriage would not by itself suffice to hold the accused persons guilty of the offence under Section 304 B IPC Patna High Court CR. APPNo.42718 dt.15 04 2021 rather the prosecution has to prove that the woman was subjected to cruelty or harassment in connection with any demand for dowry and such cruelty or harassment was soon before her death. On proof of all these ingredients the presumption under Section 113 B of the Evidence Act would arise. Reference may be made to Bakshish Ram’s case reported in4 SCC 131 12. Even if the prosecution allegation is assumed to be correct that there was demand of a gold chain and a locket the said demand was already fulfilled. Therefore allegation of any torture for non fulfillment of dowry demand loses its surface. Some of the prosecution witnesses for the first time stated in Court that there was further demand of motorcycle which is not believable nor acceptable as this allegation of demand never surfaced before the trial. 13. Moreover the prosecution allegation that death of Namita was a homicidal death is inconsistent with the prosecution evidence of Dr. Rajesh Kumar Singh who has found the case of suicidal death by hanging. The witness is specific that in cases of hanging ligature mark is found upwards as noticed in the instant case. Ligature mark in this case discontinued in the back of the neck. The Doctor further opined Patna High Court CR. APPNo.42718 dt.15 04 2021 that in case of wrapping electric wire around the neck the ligature mark would be in circle covering entire circumference of the neck 14. Two of the prosecution witnesses who are full brothers of the deceased namely PW 2 and PW 4 have not supported the prosecution case of demand of dowry and torture for the same inasmuch as PW 2 does not say about any further demand after fulfillment of demand of the gold chain and PW 4 does not say about any demand or torture for the same. 15. In Sunil Bajaj Vs. State of Madhya Pradesh reported in 2001 CRI. L. J. 4700 the prosecution had produced only vague and inconsistent statement of interested witnesses being relation of the deceased. There was no evidence of any independent witness or neighbor of the place of occurrence or whereever the deceased was residing regarding cruelty to the deceased by the accused in relation to demand of dowry. In that case there was no mention of dowry demand in letters written by the deceased to her parents. The Hon’ble Supreme Court set aside the judgment of conviction. In the case on hand there is no independent corroboration of any torture to the deceased by any neighbor who had occasion to watch the relationship of the deceased with Patna High Court CR. APPNo.42718 dt.15 04 2021 her in laws nor there is any evidence that the deceased while she was in her parents house from 20.09.2013 to 23.09.2013 made any complaint of demand and torture nor the doctor found any external injury on the person of the deceased to corroborate the claim of the prosecution witnesses that the deceased telephonically informed that she was bitterly assaulted by the in laws and after few hours report of her death was received. Thus the prosecution evidence is very shaky and clumsy to prove the ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe. It is settled law that incriminating circumstances appearing against the accused in prosecution evidence must be put to the accused at the time of statement under Section 313 Cr.P.C. Unless such statements are put to the accused to give opportunity to meet the same with explanation such incriminating circumstances cannot be used against the 17. In Naval Kishore Singh v. State of Bihar reported in 7 SCC 502 the Hon’ble Supreme Court observed as follows “5. The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner Patna High Court CR. APPNo.42718 dt.15 04 2021 Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least the various items of evidence which had been produced by the prosecution should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same as the accused may not be in a position to give a rational and intelligent explanation The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the Patna High Court CR. APPNo.42718 dt.15 04 2021 accused is part of a fair trial and if it is done in slipshod manner it may result in imperfect appreciation of evidence.” 18. The aforesaid Judgment was followed by a three Judges Bench of the Hon’ble Supreme Court in Maheshwar Tigga Vs. State of Jharkhand reported in16 SCC 328 the Hon’ble Supreme Court said: “21. Section 313 of the Code casts a Patna High Court CR. APPNo.42718 dt.15 04 2021 duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused and the conviction is intended to be based upon it it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence it would vitiate the trial. Of course all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v Patna High Court CR. APPNo.42718 dt.15 04 2021 State(1976) 2 SCC 819 while dealing with Section 342 of the Procedure Code 1898 corresponding to Section 313 of the Code). Non indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case Recording of a statement of the accused under Section 313 is not a purposeless The Judgment in Asraf Ali was considered and followed in Samsul Haque Vs. State of Assam reported in 2019) 18 SCC 161 20. In the case on hand the examination of the accused under Section 313 Cr.P.C. has been done in extremely casual and perfunctory manner: “Question no.1: Have you heard the statement of the prosecution witnesses Question No.2: The witnesses have deposed that on 24.09.2013 in village Jayshree P.S. Karakat District Rohtas you all in furtherance of your common intention caused death by throttling of Namita Devi for non fulfillment of demand of dowry. Question No.3: The witnesses have deposed that Patna High Court CR. APPNo.42718 dt.15 04 2021 Namita the sister of the informant Ramesh Prasad Gupta was married with you on 09.09.2012. Question No.4: What you have to say else in your Evidently the trial Judge failed in its duty to put specific incriminating material as to nature of demand and nature of torture allegedly committed by the accused persons against the deceased. Specific question on nature of demand and nature of torture was essential. The accused cannot be expected to submit a reasonable explanation to a vague question. The accused seriously prejudiced due to non specific question as the prosecution had improved the allegation of demand of a motorcycle for the first time in the Court Thus on a deeper scrutiny of the prosecution evidence it has surfaced that a) the prosecution has failed to establish that the victim was being tortured before her death for non fulfillment of dowry demand for the reason that the demand which was alleged in the F.I.R i.e. of a gold chain and locket was already fulfilled and thereafter there was no demand and the prosecution cooked up a case only during trial that Patna High Court CR. APPNo.42718 dt.15 04 2021 there was further demand of motorcycle. b) There is no prosecution evidence that the victim during period of her stay in her mother’s house from 20.09.2013 to 23.09.2013 had made any complaint of demand of dowry and torture for the same. c) there is no independent witness or any evidence that any witness had seen the deceased being tortured by her in laws much less torture for non fulfillment of dowry demand. d) the doctor has not found any physical injury on the body of the deceased except the ligature mark as such the oral testimony of the prosecution that the deceased telephonically informed that she was bitterly beaten by the family members soon before her death is not e) Coupled with the aforesaid infirmities non asking of specific question under Section 313 Cr.P.C. regarding specific demand and nature of torture to the deceased by the appellants any prosecution evidence on the point cannot be Patna High Court CR. APPNo.42718 dt.15 04 2021 accepted. The defence version put forward during the trial evidently appears to be a probable story of unnatural death of Namita raised by the accused and is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. 21. The learned trial Judge has not considered correctly that the prosecution has failed to prove a case of demand of dowry and torture for non fulfillment of the same. As such the prosecution failed to establish the charge under Section 304 B IPC beyond reasonable doubt. 22. In the result the appellants are allowed the benefit of doubt for which they are entitled. The impugned judgment of conviction and order of sentence are set aside. The appellants are acquitted and these appeals stand allowed. The appellants are serving out the sentence. Let them be set free at once. Birendra Kumar J

Revision petition filed under section 397 C.R.P.C dismissed for not having locus standi – Manipur high court

Revision petition filed under section 397 C.R.P.C dismissed for not having locus standi – Manipur high court A criminal revision petition was filed by the Central Bureau of Investigation (CBI) praying to set aside the impugned Zima order passed by learned Special Judge (P.C. Act) Imphal East in Cril. Misc. (Zima) Case No. 2 of 2021 and Cril. Misc. Case No. 9 of 2021 allowed the respondents to get their articles and property released on special demands. this petition was heard by a single bench of HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH in the case of Central Bureau of Investigation (CBI) versus Yumnam Sharat Meitei and Ors (Cril. Rev. Petn. No. 7 of 2021) The learned counsel appearing on behalf of the respondents raised an issue questioning the maintainability of the revision petition on the basis that the CBI seized the property without following due process of law provided under Section 18 A of the Prevention of Corruption Act, 1988 read with section  Section 3 and 4 of the Criminal Law Amendment Ordinance 1944 and claiming that the CBI has no locus standi to object to the Zima application filed by the respondents or to file the present revision petition challenging the impugned Zima order passed by the learned Special Judge (P.C. Act), Imphal East. to support the following contentions the counsel relied on the judgment of “Ratan Babulal Lath Vs. the State of Karnataka” reported in 2021 (3) Crimes 339 (S.C.) The learned counsel appearing on behalf of petitioners contends that under Section 102 Cr.P.C., any Police Officer is empowered to seize and kept it under custody any property which may be alleged or suspected to have been stolen or which may be found under circumstances that creates suspicion of the commission of any offenses including offenses under the Prevention of Corruption Act, 1988 and the counsel relied on the judgments of “State of Maharashtra Vs. Tapas D. Neogy” reported in (1999) 7SCC 685 and of “Teesta Atul Setalvad Vs. the State of Gujarat” reported in (2018) 2 SCC372. The court decides that the properties of the respondents have been seized without following the provisions laid down under the Criminal Law Amendment Ordinance, 1944. Accordingly, the seizure of the properties of the respondents is not sustainable and finds the preliminary force in the objection raised by the respondents and has no locus standi. The present revision petition is found not maintainable.

IN THE HIGH COURT OF MANIPUR AT IMPHAL Cril. Rev. Petn. No. 21 Central Bureau of Investigation represented by its Head of Branch Anti Crime Branch Imphal P.O. & P.S. Lamphel Imphal West District Manipur 795004. Petitioner Versus 1. Yumnam Sharat Meitei aged about 55 years S o Y. Bishma Singh of Wangkhei Angom Leikai P.O. & P.S. Porompat Imphal East Manipur 795005. 2. OinamDayabati Devi aged 50 years W O YumnamSharat Meitei of Wangkhei Angom Leikai P.O. & P.S. Porompat Imphal East Manipur 795005. B E F O R E HON’BLEMR. JUSTICE AHANTHEM BIMOL SINGH For the Petitioner Mr. W. Darakishwore Sr. Panel Counsel. For the respondents Mr. Ch. Ngongo Adv. Date of Hearing Date of Order 21.12.2021. 18.01.2022 1] Heard Mr. W. Darakishwor learned senior panel counsel appearing for the petitioner and Mr. Ch. Ngongo learned counsel appearing for the The present criminal revision petition has been filed under Section 397 Cr.P.C. with a prayer for setting aside the impugned Zima order dated 26.02.2021 passed by the learned Special Judge Cril. Rev. Petn. No. 21 Page 1 Imphal East in Cril. Misc.Case No. 21 and Cril. Misc. Case No. 21. The facts of the present case in a nutshell is that the petitionerregistered a case being FIR No. R.C. 1A 2020 CBI ACB Imphal U S 13r w 13(b) of P.C. Act 1988against the present respondent No. 1 for alleged possession of pecuniary resources or properties disproportionate to his known source of income. Immediately after registration of the said FIR the Officials of the CBI conducted a search operation at the residential premises of the respondent No. 1 on 31.01.2020 and seize a large number of documents and articles by preparing a search cum seizure memo dated 31.01.2020 and the seized articles were kept in the custody of the CBI. The respondents No. 1 & 2 who are husband and wife filed an application under Section 457 Cr.P.C. before the learned Special Judge P.C. Act) Imphal East praying for granting to them interim custody of the seized documents money and gold ornaments on Zima and the said application was registered as Cril. Misc. Case No. 2 of 2021. The present petitioner also filed an application for allowing them to deposit the seized money in the current account of S.P. CBI and the said application was registered as Cril. Misc. Case No. 9 of 2021. Both the aforesaid applications was jointly heard by the learned Special JudgeImphal East and the same were disposed of by a common order dated 26.02.2021 by allowing the prayer of the present respondents for Cril. Rev. Petn. No. 21 Page 2 releasing the aforesaid seized documents and articles on Zima in their favour subject to the conditions mentioned in the order and at the same time dismissing the application filed by the CBI for depositing the seized money in the Bank Account of the S.P. CBI. Feeling aggrieved the present petitioner filed the present Criminal Revision Petition assailing the Zima order dated 26.02.2021 passed by the learned Special JudgeImphal West. At the outset Mr. Ch. Ngongo learned counsel appearing for the respondents raised a preliminary issue regarding the maintainability of the present revision petition on the ground that the CBI seized or confiscated the documents and articles including money and gold ornaments from the respondent No. 1 illegally without following due process of law provided under Section 18 A of the Prevention of Corruption Act 1988read with Section 3 and 4 of the Criminal Law Amendment Ordinance 1944 and as such the CBI has no locus standi to object to the Zima application filed by the respondents or to file the present revision petition challenging the impugned Zima order passed by the learned Special Judge Imphal East. The counsel for the respondents draw the attention of this Court to the provisions of Section 18 A of the P.C. Act and Section 3 4 and Para 4 A of the Schedule to the Cril. Ordinance which reads as under: Cril. Rev. Petn. No. 21 Page 3 Section 18 A of the P.C. Act 1988: “18A. Provision of Criminal Law Amendment Ordinance 1944 to apply to attachment under this Act.Save as otherwise provided under the Prevention of Money Laundering Act 2002the provisions of the Criminal Law Amendment Ordinance 1944 shall as far as many be apply to the attachment administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act. For the purpose of this Act the provisions of the Criminal Law Amendment Ordinance 1944shall have effect subject to the modification that the references to “District Judge” shall be construed as references to “Special Judge.” to believe the case may be Section 3 and 4 of the Cril. Ordinance: “ 3. Application for attachment of property. Where the the Central State Government or as Government has reason that any person has committedany scheduled offence the State Government or as the case may be the Central Government may whether or not any Court has taken cognizance of the offence authorise the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business for the attachment under this Ordinance of the money or other property which the State Government or as the case may be the Central Government believes the said person to have procured by means of the offence or if such money or property cannot for any reason be attached or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property. 2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure 1908 shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the 3) An application under sub sectionshall be accompanied by one or more affidavit stating the grounds on which the belief that the said person has committed any scheduled offence is founded and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also furnish a) any information available as to the location for the time being of any such money or other property and shall if necessary give particulars including the estimated value of other property of the said person Cril. Rev. Petn. No. 21 Page 4 Ad interim attachment. the names and addresses of any other persons believed to have or to be likely to claim any interest or title in the property of the said person. Upon receipt of an application under Section 3 the District Judge shall unless for reasons to be recorded in writing he is of the opinion that there exist no prima facie grounds for believing that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property pass without delay an ad interim order attaching the money or other property alleged to have been so procured or if it transpires that such money or other property is not available for attachment such other property of the said person of equivalent value as the District Judge may think fit: Provided that the District Judge may if he thinks fit before passing such order and shall before refusing to pass such order examine the person or persons making the affidavit accompanying the At the same time as he passes an order under sub section 1) the District Judge shall issue to the person whose money or other property is being attached a notice accompanied by copies of the order the application and affidavits and of the evidence if any recorded calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be made absolute. The District Judge shall also issue accompanied by copies of the documents accompanying the notice under sub sectionto all persons represented to him as having or being likely to claim any interest or title in the property of the person to whom notice is issued under the said sub section calling upon each such person to appear on the same date as specified in the notice under the said sub section and make objection if she so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof. Any person claiming an interest in the attached property or any portion thereof may notwithstanding that no notice has been served upon him under this section make an objection as aforesaid to the District Judge at any time before an order is passed under sub sectionor sub sectionas the case may be of Section 5.” “THE SCHEDULE” Offences in connection with which property is liable to be Cril. Rev. Petn. No. 21 Page 5 “4 A. An offence punishable under the Prevention of Corruption Act 1988.” By relying on the aforesaid provision of law the learned counsel appearing for the respondents submitted that under Section 18 A of the P.C. Act it is provided inter alia that the provisions of the Cril. Ordinance shall apply to the attachment or confiscation of money or property procured by means of an offence under the P.C. Act and that under Section 3 and 4 of the Cril. Ordinance the procedure for attachment or confiscation of property of an offence under the P.C. Act are provided. The learned counsel also submitted that the petitionerdid not follow the procedure prescribe under the said Cril. Ordinance at the time of attachment or seizure of the property of the respondent No. 1 and as such the said seizure of the property is illegal and accordingly the CBI has no locus standi to object to the granting of custody of the seized properties to the respondents on Zima or to file the present criminal revision for setting aside the Zima order passed by the learned Special Judge Imphal In support of his contentions the learned counsel relied on the judgment of the Hon’ble Apex Court in the case of “Ratan Babulal Lath Vs. State of Karnataka” reported in 2021Crimes 339wherein it has been held that it is not possible to sustain freezing of Bank Account of the appellant taking recourse to Section 102 Cr.P.C. for an alleged offence under P.C. Act as the Prevention of Corruption Act is a code by itself and Cril. Rev. Petn. No. 21 Page 6 freezing of the account of the appellant cannot be sustained and it was accordingly set aside. 6] Mr. W. Darakishwor learned senior panel counsel appearing for the petitioner submitted that under Section 102 Cr.P.C. any Police Officer is empowered to seize and kept it under custody any property which may be alleged or suspected to have been stolen or which may be found under circumstances which creates suspicion of the commission of any offences including offences under the Prevention of Corruption Act 1988. The learned counsel further submitted that the petitioner can seize and kept it in their custody the property of the respondent No. 1 for committing the alleged offences under the P.C. Act in exercise of the power under Section 102 Cr.P.C. and thereafter to attach the same under Section 18 A of the P.C. Act if required. In support of his contentions the learned counsel relied on the following judgment of the Hon’ble Apex Court: “State of Maharashtra Vs. Tapas D. Neogy” reported in7SCC 685: “12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal procedure and whether the bank account can be held to be “property” within the meaning of the said Section 102we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification could be withdrawn by the Cril. Rev. Petn. No. 21 Page 7 accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are therefore persuaded to take the view that that bank account of the accused or any of his relation is “property” within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka Gauhati and Allahabd High Courts does not represent the correct law. It may also be seen than under the prevention of Corruption Act 1988 in the matter of imposition of the fine under sub sectionof Section 13 the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount of the value of the property which the accused person has obtained by committing the offence or where the conviction if for an offence referred to in clause of sub sectionof Section 13 the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer prohibiting the account of the accused from being operated upon. Though we have laid down the law but so far as the present case is concerned the order impugned has already been given effect to and the accused has been operating his accounts and so we do not interfere with the same.” “Teesta Atul Setalvad Vs. State of Gujarat” reported in2 SCC372 : “17. The sweep and applicability of Section 102 of the code of is no more res integra. That question has been directly considered and answered in State of Maharashtra v. Tapas D. Neogy. The Court examined the question whether the police officer investigating any offence can issue prohibitory orders in respect of bank accounts in exercise of power under Section 102 of the Code. The High Court in that case after analysing the provisions of Section 102 of the code had opined that bank account ofthe accused or of any relation of the accused cannot be held to be “property” within the meaning of Section 102 of the Code. Therefore the investigating officer will have no power to seize bank accounts or to issue any prohibitory order prohibiting the operation of the bank account. This Court noted that there were conflicting decisions of different High Courts on this aspect and as the question was seminal it chose to answer the same. In para 6 this Court noted thus:Cril. Rev. Petn. No. 21 Page 8 A plain reading of sub section of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression “any property” and “any offence” have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be “property” and secondly in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be “property” within the meaning of sub section of Section 102 CrPC and secondly whether circumstances exist creating suspicion of commission of any offence in relation to the same.” “18. After analysing the decisions of different High Courts this Court in para 12 expounded the legal position thus:“12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal procedure and whether the bank account can be held to be “property” within the meaning of the said Section 102we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in the Criminal the provisions of Section 102 of Procedure Code and the underlying object engrafted therein inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are therefore persuaded to take the view that that bank account of the accused or any of his relation is “property” within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka Gauhati and Allahabd High Courts does not represent the correct law. It may also be seen than under the prevention of Corruption Act 1988 in the matter of imposition of the fine under sub section 2) of Section 13 the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount of the value of the property which the accused person has obtained by committing the offence or where the conviction if for an offence referred to in clause of sub section of Section 13 the pecuniary resources or property for which the accused Cril. Rev. Petn. No. 21 Page 9 person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer prohibiting the account of the accused from being operated upon. Though we have laid down the law but so far as the present case is concerned the order impugned has already been given effect to and the accused has been operating his accounts and so we do not interfere with the same. After this decision there is no room to countenance the challenge to the action of seizure of bank account of any person which may be found under circumstances creating suspicion of the commission of any offence.” It has also been submitted by the learned counsel appearing for the petitioner that the judgment of the Hon’ble Apex Court in the case of “Ratan Babulal Lath’s”relied on by the counsel for the respondent had been passed without considering the earlier judgments of the Hon’ble Apex Court the cases of “Tapas D. Neogy” Supra) and “TeestaAtulSetalval” and as such the said judgment had been passed par incuraim and it has no binding or precedential value. The learned counsel accordingly submitted that the preliminary objection raised by the counsel for the respondents has no merit and the same deserves to be rejected outright. In support of his contentions the learned counsel relied on the judgment of the Hon’ble Supreme Court rendered in the case “State of Assam Vs. Ripa Sharma” reported in 3 SCC 63 wherein it has been held that judgment rendered in ignorance of earlier judgment of Cril. Rev. Petn. No. 21 Page 10 Benches of Co equal strength would render the same par incuriam and that such judgments cannot be elevated to the status of precedent. 8] On careful examination of the provisions of Section 18 A and Section 29 (iii) of the P.C. Act as well as the provisions of the Criminal Law Amendment Ordinance 1944 it is crystal clear that for attachment administration of attached property execution of order of attachment or confiscation of money or property procured by means of an offence under the Prevention of Corruption Act 1988 the procedure prescribe under the provisions of the Criminal Law Amendment Ordinance 1944 shall apply and the P.C. Act being a complete code and a Special Act will naturally exclude the application of Section 102 Cr.P.C. in the matter of attachment or seizure of property relating to offence committed under the P.C. Act 1988. The resultant conclusion is that if any property is to be attached or seized in connection with the allegation of committing offence under the P.C. Act such attachment or seizure of the property is to be carried out in terms of the provisions under the Criminal Law Amendment Ordinance 1944 and not under the provisions of Section 102 Cr.P.C. If the authorities attached or seized any such properties in connection with offences under the P.C. Act taking recourse to Section 102 Cr.P.C. such attachment or seizure is not sustainable as held by the Hon’ble Supreme Court in the case of “Ratan Babulal Lath”relied on by the Cril. Rev. Petn. No. 21 Page 11 counsel for the petitioner is concerned it is to be pointed out that the aforesaid two judgments were passed on 16.09.1999 and 15.12.2017 respectively before the amendment of the P.C. Act 1988. The provisions of Section 18 A of the P.C. Act 1988 were incorporated in the PC Act w.e.f. 26.07.2018 only and as such the principle laid down by the Hon’ble Apex Court in the aforesaid two judgments relied on by the counsel for the respondents which were decided much earlier to the aforesaid amendment will have no application in the facts and circumstances of the present case. 10] The counsel for the petitioner did not controvert or deny the contentions made on behalf of the respondents that the properties of the respondents have been seized without following the provisions laid down under the Criminal Law Amendment Ordinance 1944. Accordingly the seizure of the properties of the respondents are not sustainable. In view of the above and for the reasons given hereinabove this Court finds force in the preliminary objection raised on behalf of the respondents that the petitionerhas no locus standi to file the present revision petition. In the result the present criminal revision petition is hereby dismissed as not maintainable however without costs. Cril. Rev. Petn. No. 21 Page 12

The petitioners were released on bail after being arrested under Sections 147, 148, 149, 307 of the IPC and 27 of the Arms Act, 1959.: High court of Patna

The petitioner was taken into custody under Sections 147, “ Punishment for rioting”, section 148, “Rioting, armed with a deadly weapon”, section 149, “Every member of unlawful assembly guilty of offense commit­ted in the prosecution of a common object”, section 307 of the Indian Penal Code, “Attempt to murder”, and section 27 of the Arms Act, 1959, “Punishment for using arms, whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.” This present petition is connected with Nathnagar (Madhusudanpur) PS Case No. 97 of 2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 26th of August 2021 in the case of Dayal Yadav @ Deepak Kumar and others versus the state of Bihar criminal miscellaneous No. 14137 of 2021 Mr. Sandeep Kumar, represented as the advocate for the petitioner, and Mr. Lakshmi Sharma represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioners were accused of being part of two groups who were using illegal arms and indulged in firing at each other and when the police arrived at the spot, the groups which included the petitioners had run away from the spot possessing an empty cartridge of .315 bore was recovered. The counsel representing the petitioner held that the FIR that was filed made no sense and cannot be relied upon since if there is incriminate firing between two groups how come only one empty cartridge is found. further, the counsel held that the informant approached many police constables and an SHO (station house officer) himself it is not believable that he could not catch even one person as the incident took place in the afternoon in full daylight. However, the identification of the 10 petitioners was based on assumption as the names of the petitioners were transpired during the course of inquiry they were accused and no valuable source has been indicated. And the counsel held that the FIR is vague and general and not based on any cogent evidence and the petitioners have no criminal antecedent and there has been no injury caused to any person. The additional public prosecutor held that the petitioners have been in custody as their names were present in the FIR. However, the APP held that it is not controverted that this recovery of only one empty cartridge of .315 bore and there is no injury alleged to any person. After considering the facts and circumstances of the case the court held that “since there is the recovery of just one empty cartridge and no injury caused to any person, the Court is inclined to allow the prayer for pre-arrest bail. The petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) each with two sureties of the like amount each to the satisfaction of the learned ACJM -I, in connection with PS Case No. 97 of 2020, under Section 438(2) of the Cr.P.C.1973, (i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute bond with regard to the good behavior of the petitioners, and (iii) that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal/criminal activity. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 141321 Arising Out of PS. Case No. 97 Year 2020 Thana NATHNAGAR District Bhagalpur 1. Dayal Yadav @ Deepak Kumar Male aged about 26 years Son of Bindeshwari Yadav @ Bindeshwari Prasad. Puran Yadav Male aged about 36 years Son of Bachcho Yadav Both are resident of Village Kishanpur PS NathnagarDistrict Bhagalpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Sandeep Kumar Senior Advocate with Mr. Arvind Kumar Advocate Mr. Lakshmi Kant Sharma APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 26 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 petitioners which was 3. Heard Mr. Sandeep Kumar learned senior counsel along with Mr. Arvind Kumar learned counsel for the petitioners and Mr. Lakshmi Kant Sharma learned Additional Public Prosecutorfor the State 4. The petitioners apprehend arrest in connection with Nathnagar PS Case No. 97 of 2020 dated Patna High Court CR. MISC. No.141321 dt.26 08 2021 13.02.2020 instituted under Sections 147 148 149 307 of the Indian Penal Code and 27 of the Arms Act 1959 5. The allegation against the petitioners who are among 10 named and 19 unknown persons is that they were part of two groups who were indulging in firing at each other and when the police reached the spot they had run away and from the spot one empty cartridge of .315 bore was recovered 6. Learned senior counsel for the petitioners submitted that the FIR is totally erroneous since it cannot be believed that when there is incriminate firing between two sides only one empty cartridge would be recovered. Further learned senior counsel submitted that when the informant who is the SHO himself and had gone with other police constables it is unbelievable that they would not been able to catch even one person though it was 3:50 PM in the afternoon in full day light. It was submitted that even the identification of 10 persons who are named including the petitioners is doubtful as in the FIR itself it has been stated that during the course of enquiry the names had transpired but no source has been indicated. Learned senior counsel submitted that the FIR is not based on any cogent evidence and is absolutely vague and general. It was submitted that the petitioner no. 1 has one other criminal case against him Patna High Court CR. MISC. No.141321 dt.26 08 2021 being Nathnagar PS Case No. 129 of 2020 whereas petitioner no. 2 does not have any criminal antecedent. It was further submitted that no injury has been caused to any 7. Learned APP submitted that the petitioners are named in the FIR. However it was not controverted that there is recovery of only one empty cartridge of .315 bore and there is no injury alleged to any person 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties there being recovery of just one empty cartridge and no injury caused to any person the Court is inclined to allow the prayer for pre arrest 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned ACJM I Bhagalpur in NathnagarPS Case No. 920 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners Patna High Court CR. MISC. No.141321 dt.26 08 2021 and the bailors shall execute bond with regard to good behaviour of the petitioners andthat the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of their bail bonds. The petitioners shall 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 their bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioners 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

A person cannot be penalized, when there is a delay in investigation on the part of the investigating authority – High Court of Delhi.

Where the Directorate of Revenue Intelligence had confirmed to submit the final report to the Jurisdictional Commissionerate within 2 months and had not filed any chargesheet or issued any charge memo for 2 years, then in such case for the delay in investigation, one cannot be penalised. A divisional Judge bench comprising Hon’ble Justice Manmohan and Justice Navin Chawla, in the matter of Union of India and Ors Vs. Vikram Bhasin (W.P.(C) 6079/2021), dealt with an issue where a Writ petition was filed Challenging an order dated 11th May 2021, passed by the Central Administrative Tribunal. As submitted by the counsel of the petitioner, the respondent was posted in the office of the Commissioner of Customs at IGI Airport as superintendent (Jewellery Appraiser). The respondent was placed under suspension from 3rd June 2019, initially for a period of 90 days. Later the suspension got extended from time to time in the spells of 180 days. The order of Suspension was issued to the respondent only after the arrest of the respondent on 31st May 2019. Further, the counsel of the petitioner submitted that the Tribunal erred in holding that the suspension was in contemplation of disciplinary proceeding and there was no reference to any criminal case, much less, to the factum of the arrest. Also, the tribunal directed discontinuation of the respondent’s suspension as well as directed the petitioner to reinstate the respondent in service. Moreover, the Directorate of Revenue Intelligence had informed the petitioner that the final investigation report would be submitted to the jurisdictional Commissionerate for further action within two months. The court stated that despite a delay of 2 years neither any charge memo was issued to the petitioner, nor any chargesheet had been filed. Court also observed that- “the Investigating Authorities have had more than sufficient time to conclude the investigation. For any delay in investigation, the applicant/respondent cannot be penalised”. Thereby the court dismissed the writ petition along with the pending applications and, in agreement with the reasoning of the tribunal, the court directed that where the respondent is to be paid subsistence allowance equivalent to his salary, then the petitioner might as well utilize his services.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 05th July 2021 W.P.(C) 6079 2021 & CM APPLs.19252 19253 2021 UNION OF INDIA AND ORS. THROUGH SECRETARY MINISTRY OF FINANCE ..... Through: Mr. Y.P. Singh Advocate. VIKRAM BHASIN ..... Respondent Through: Mr. Ajesh Luthra Advocate. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.The petition has been heard by way of video conferencing. Present writ petition has been filed challenging the Order dated 11th May 2021 passed by the Central Administrative Tribunal hereinafter referred to as ‘Tribunal’) in OA No.871 2021. Learned Counsel for the petitioner states that the respondent was posted as Superintendent in the office of Commissioner of Customs at IGI Airport and was serving on the same post till his suspension. He states that on 03rd June 2019 the respondent was placed under suspension in contemplation of the disciplinary proceedings. He states that his suspension was initially for W.P.(C) 6079 2021 a period of ninety days and thereafter it was extended from time to time in the spells of one hundred and eighty days. Learned Counsel for the petitioner states that in the impugned the Tribunal has directed the suspension of applicant respondent shall not be continued once the present extension of time expires. He states that the Tribunal further directed that the applicant respondent be reinstated in service soon thereafter. Learned Counsel for the petitioner submits that the Tribunal erred in holding that the suspension was resorted to in contemplation of disciplinary proceedings and that there was no reference to any criminal case much less to the factum of arrest. He submits that the Tribunal failed to appreciate that the initial order of suspension was issued on 03rd June 2019 i.e. only after the arrest of the respondent on 31st May 2019. Learned counsel for the petitioner states that the Directorate of Revenue Intelligence vide letter dated 14th June 2021 has informed the petitioner that that the final investigation report shall be submitted to the jurisdictional commissionerate for further action within two However this Court finds that despite the lapse of two years neither any chargesheet has been filed nor any charge memo has been issued to the applicant respondent. As far as the issue of suspension of the petitioner and extension thereof this Court is of the view that the Investigating Authorities have had more than sufficient time to conclude the investigation. For any delay in investigation the applicant respondent cannot be penalised. This Court is also in W.P.(C) 6079 2021 agreement with the reasoning of the Tribunal that since the applicant applicant has now to be paid subsistence allowance equivalent to his salary it would serve no purpose not to utilise his services. Accordingly this Court finds no ground to interfere with the impugned order in writ jurisdiction and the present writ petition along with pending applications is dismissed. At this stage learned counsel for the petitioner on instruction of the Commissioner of Customs states that the impugned order shall be complied with within fifteen days. The statement made by learned counsel for the petitioner is accepted by this Court. It is directed that in the event the aforesaid statement is complied with then no contempt proceedings shall be initiated against the petitioner and or its 10. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J NAVIN CHAWLA J JULY 05 2021 W.P.(C) 6079 2021

A woman cannot claim that her consent was wrongfully obtained on a false promise, if she continued to engage in sexual intercourse with the accused for many years: High Court of Chhattisgarh

If a woman is has consented to sexual intercourse with a man because he falsely promised to marry, she is required to file a complaint soon after. She will lose the right to file this complaint if she continues to engage in sexual relations for many years later. This was held in the judgement passed by a bench of High Court of Chhattisgarh consisting of Justice Arvind Singh Chandel in the case of Naiharsay v State of Chhattisgarh [Criminal Appeal No. 51 of 2017] on 16th July 2021. The appellant, Naiharsay and the prosecutrix met in 2009 in Village Thakur Podi. Soon after during Dhanteras celebration. The appellant attempted to forcibly initiate physical relationship with her but thereafter apologised and promised to marry her. Considering his apology and promise to be genuine, she continued to meet him and did not make any complaint. The two of them travelled to numerous villages, where they continued to have sexual relations. 2 years later, in July 2011, while they were at Kilkila temple, the appellant admitted that he had no intention of marrying the prosecutrix. They continued to have sexual intercourse until the end of 2011, when the appellant outright refused to marry the prosecutrix. In April 2012, the appellant got engaged and fixed his marriage with another girl. The prosecutrix filed rape charges against the appellant as she claimed that she had consented to sex with him only because he promised to marry her and he had introduced her to many people as his wife. The Additional Sessions Judge, Raigarh convicted the appellant under Section 376 of the Indian Penal Code on grounds that his consent was conditional to a false promise made by him, which would make him guilty of rape. The learned counsel for the appellant submitted that the prosecutrix was a major woman fully capable of giving her consent for sexual intercourse since before she started her relations with the appellant in 2009. The counsel pointed out that the prosecutrix’s delay in filing a complaint was inexplicable. The case of Maheshwar Tigga v State of Jharkhand [10 SCC 108 of 2020] was cited where it was held that “misconception of a fact has to be in proximity of time to the occurrence and cannot be spread over years”. The appellant’s counsel concluded that the prosecutrix’s argument that she consented to sexual intercourse for a long period of three years solely on a false promise of marriage. The High Court of Chhattisgarh noted that the prosecutrix had not filed any complaint upon knowing that the appellant would not marry her, but only did once he became engaged for marriage to another girl.

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.517 Judgment Reserved on : 5.7.2021 Judgment Delivered on : 16.7.2021 Naiharsay son of Nouharsay aged about 28 years resident of Village Kumarta Police Station Kapu District Raigarh Chhattisgarh Presently resident of Village Thakur Podi Police Station Kapu District Raigarh State of Chhattisgarh through Police Station Kapu District Raigarh Appellant Respondent Shri Awadh Tripathi Advocate Shri Amit Singh Panel Lawyer : Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT The instant appeal has been preferred against judgment dated 21.12.2016 passed by the Additional Sessions Judge Raigarh in Sessions Trial No.1112 whereby the Appellant has been convicted and sentenced as under: Under Section 376 of the Indian Penal Code Rigorous Imprisonment for 10 years and fine of Rs.10 000 with default Case of the prosecution in short is that on 30.4.2012 i.e. the date of registration of First Information Reportthe prosecutrix PW3) was 24 years old. On 30.4.2012 itself she made a written complaintalleging therein that she got acquainted with the Appellant in July 2009. She met with him at Village Thakur Podi In 2009 on the day of Dhanteras Festival at about 7:30 p.m. the Appellant made forcible physical relationship with her. Thereafter he apologised for his act and promised to marry her. Considering his apology to be genuine she did not make any complaint. Next day he took her to his house. There his parents also assured her that on completion of her studies they will perform her marriage with the Appellant. It is further alleged that thereafter the Appellant took her to many villages namely Patarapara Kumrata Miriguda Dharamjaigarh Surungpani and Gerwani and introduced her there as his wife. He also committed sexual intercourse with her there Thereafter surprisingly in December 2011 he refused to marry her. Prior to that in July 2011 a social meeting was convened in Kilkila Temple in which also he admitted his guilt. On the basis of the written complaintFirst Information Reportwas registered. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation a charge sheet was filed against the Appellant. A charge was framed against him To bring home the offence the prosecution examined as many as 13 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt pleaded innocence and false implication. No witness has been examined in his defence. On completion of the trial the Trial Court vide the judgment under challenge convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence this appeal. Learned Counsel appearing for the Appellant submitted that it is not in dispute that at the time of alleged incident the prosecutrix was a major girl. According to her deposition the first incident of sexual intercourse was done with her by the Appellant on the day of Dhanteras Festival in July 2009. The written complaint it is established that physical relationship continued between her and the Appellant for a long period of about 3 years. Both also visited various places as husband and wife. But during this long period she never raised any complaint against the Appellant. In July 2011 when the Appellant admitted his guilt in a social meeting convened in a temple at that time also she did not raise any complaint against him. In December 2011 when the Appellant refused to marry her at that time also she did not make any complaint. Therefore it is clear that she was a consenting party and the physical relationship continued between them with her consent. Placing reliance on 2020) 10 SCC 108it was submitted that misconception of fact has to be in proximity of time to the occurrence and cannot be spread over years Therefore it was argued that it cannot be accepted that the prosecutrix consented to the Appellant for commission of sexual intercourse for a long period of 3 years on a false promise of marriage. Since the prosecutrix was a major girl and was a consenting party the conviction is not sustainable. On the contrary Learned Counsel appearing for the State opposed the submissions put forth on behalf of the Appellant and supported the impugned judgment. I have heard Learned Counsel appearing for the parties and minutely perused the entire material available on record including the statements of the prosecutrix and other witnesses. It is not in dispute that at the time of first incident i.e. on the day of Dhanteras Festival in 2009 the prosecutrixwas 21 years old. According to her Court statement at the time of first incident the Appellant committed forcible sexual intercourse with her. Her statement in this regard is also supported by her sister Shakuntala PW8) and brother in law Mohanlal she and the Appellant visited Villages Patarapara Kumrata Miriguda Dharamjaigarh Surungpani and Gerwani and the Appellant introduced her there as his wife and made physical relationship with her there. She further deposed that a social meeting was convened in Kilkila Temple in July 2011 in which the Appellant admitted his guilt. Thereafter finally in December 2011 he refused to marry her. But she did not make any report in July 2011 or in December 2011. When engagement of the Appellant with another girl took place and his marriage was fixed then she made the written complaintin April 2012. From her above conduct it appears that whatever relation continued between her and the Appellant her consent was involved therefor. From her statement it is established that the physical relationship continued between her and the Appellant for a long period of 3 years. In July 2011 the Appellant admitted his guilt in the social meeting and in December 2011 he finally refused to marry her but she did not make any complaint against the Appellant on those occasions. Furthermore from her statement it is clear that the physical relationship continued between them during the period from July 2011 to December 2011 also. Even after admitting his guilt by the Appellant in the social meeting convened in July 2011 she allowed him to make physical relationship with her and she did not make any complaint against him. In December 2011 also when he finally refused to marry her she did not make any complaint against him. She made the complaint only after his engagement for marriage with another girl took place. Therefore her statement that she consented for the physical relationship on a false promise of marriage is not acceptable. The evidence clearly establishes that there was her consent for the physical relationship for the long period of 3 years. Since she was a major girl and was a consenting party the conviction under Section 376 of the Indian Penal Code imposed upon the Appellant is not sustainable. Consequently the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge framed against him. Sd (Arvind Singh Chandel JUDGE

Section 13 of the Commercial Courts Act provides for appeals from the Commercial Court and Commercial Division decrees: High Court of Sikkim

Section 16(2) mandates that the Commercial Court shall follow the provisions of the CPC as amended by the Act in the trial of a suit in respect of the commercial dispute. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mrs. Justice Meenakshi Madan Rai and The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of M/s Thomas Enterprises and Ors Vs. M/s Yuksom Breweries Limited [R.F.A. No. 04 of 2018]. The facts of the case were associated with an application filed against the impugned judgment passed by the learned District Judge, South Sikkim, at Namchi dated 30.07.2018. The matter was found to be a commercial dispute and ought to be tried as per the Commercial Courts Act, 2015. According to both the counsel the impugned judgment and decree should be set aside and the Money Suit to the Commercial Court. The respondent sought a decree against the appellants for a sum of Rs.1,29,00,728/- along with interest @ 12% per annum on and from 01.04.2014 till realization in the Money Suit filed.   It was stated that a suit that did not contemplate any urgent interim relief under the Act, shall not be instituted unless the plaintiff exhausted the remedy of pre-institution mediation. A settlement arrived at is required to be reduced into writing and signed by the parties and the mediator. The settlement had the same status as an arbitral award on agreed terms under sub-section (4) of Section 30 of the Arbitration and Conciliation Act, 1996. However, the Money Suit was not dealt with in the manner required under the Act. The Hon’ble Court opined that the failure of the learned District Judge to scrutinise and transfer the Money Suit to the Commercial Court had led to defeat the very object of the enactment of the Act to provide for speedy disposal of high-value commercial disputes.  The Hon’ble Court considering all the facts stated that “We are thus of the considered view that the impugned judgment and decree dated 30.07.2018 passed by the learned District Judge in the Money Suit must be set aside and the Money Suit transferred to the files of the Commercial Court. The Money Suit shall then be tried by the Commercial Court as per the provisions of the Act. It is accordingly ordered. Pending application is also disposed.”

THE HIGH COURT OF SIKKIM: GANGTOK Civil Appellate Jurisdiction) DIVISION BENCH: HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE R.F.A. No. 018 1. M s Thomas Enterprises Kalyani Apartments Sevoke Road Siliguri 734401 West Bengal. 2. N.L. Thomas M s Thomas Enterprises Kalyani Apartments Sevoke Road Siliguri 734401 West Bengal. ….. Appellants M s Yuksom Breweries Limited Melli South Sikkim Pin No. 737128. ….. Respondent Appeal under Order XLI Rule 1 and 2 of the Code of Civil Procedure 1908. Mr. Anmole Prasad Senior Advocate with Mr. Sagar Chettri Advocate for the Appellants. Mr. Jorgay Namka Advocate for the respondent. Date of hearing : 29.10.2021 Date of pronouncement: 01.11.2021 Bhaskar Raj Pradhan J. ORDER RFA No 04 of 2018 was filed on 05.10.2018 against the judgment and decree dated 30.07.2018passed by the learned District Judge South Sikkim at Namchi in Money Suit No.3 of 2016 Money Suit). It was dealt with by the learned Single Judge of this court from 25.10.2018 till 22.10.2021. On examination the learned Single Judge came to a prima facie view that the matter pertained to a commercial dispute and ought to be tried as per the Commercial Courts Act 2015 (c) defines commercial dispute. The learned counsel for the parties agrees that the dispute in the present matter is a commercial dispute. The Money Suit filed by the respondent sought a decree against the appellants for a sum of Rs.1 29 00 728 along with interest @ 12% per annum on and from 01.04.2014 till realization. It was the respondent’s case that the appellant no.1 had been assigned its marketing distribution work as its sole agent for the North Bengal region. The respondent relied upon memorandum of understanding and an agreement of agency between them as well as a promissory note executed by the appellant no.2. Considering the nature of the dispute it is apparent that it is a commercial dispute. Vide Notification No.27 HCS Judl. dated 20.08.2016 the Hon’ble Chief Justice in exercise of powers vested on him under Section 5(1) of the Act constituted the Commercial Appellate Division in this court to deal with appeals arising from the Commercial Courts Commercial Division as provided under Section 13 of the No.58 Home 2016 dated 06.10.2016 in exercise of the powers Act. R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. conferred by Section 3 of the Act designated the District & Sessions Court of all the four districts as “Commercial Courts” and the Judges of the District & Sessions Courts as the Judges of the Commercial Courts for the purpose of adjudicating commercial disputes within their respective jurisdiction with immediate effect. Section 6 of the Act provides for jurisdiction of the Commercial Courts. It has jurisdiction to try all suits and applications relating to a commercial dispute of a specified value arising out of the entire territory of the State over which it has been vested territorial jurisdiction. Section 2 (i) defines specified value. Specified value in relation to a commercial dispute shall mean the value of the subject matter in respect of a suit as determined in accordance with Section 12 which shall not be less than three lakh rupees or such higher value as may be notified by the Central Government. Section 12 provides how specified value ought to be determined in a suit appeal or application. Section 12 A of the Act mandates a pre institution mediation and settlement. A suit which does not contemplate any urgent interim relief under the Act shall not be instituted unless the plaintiff exhausts the remedy of pre institution mediation in accordance with such manner and procedure as may be R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. prescribed by rules made by the Central Government. The Central Government may by notification authorise authorities constituted under the Legal Services Authorities Act 1987for the purposes of pre institution mediation. The Authority authorized by the Central Government is required to complete the process of mediation within a period of three months from the date of application made by the plaintiff. This period could be extended for a further period of two months with the consent of the parties. A settlement arrived at is required to be reduced into writing and signed by the parties and the mediator. The settlement shall have the same status as if it is an arbitral award on agreed terms under sub section of Section 30 of the Arbitration and Conciliation Act 1996 dated 3rd July 2018 is a notification issued in exercise of the powers conferred under Section 12 A of the Act authorising the State Authority and the District Authority constituted under the LSA Act for the purposes of pre institution mediation and settlement under Chapter III A of the Act. Section 15(2) of the Act provides that all suits and applications including applications under the Arbitration Act relating to a commercial dispute of a specified value pending in any Civil Court in any District or area in respect of which a R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. Commercial Court has been constituted shall be transferred to such Commercial Court. The Money Suit was filed before the learned District Judge in August 2016. At that time although the Act had been enforced the Commercial Courts had yet not been constituted. However after the constitution of the Commercial Courts in terms of Section 15(2) of the Act on 06.10.2016 the Money Suit was required to be transferred to the Commercial Court. This was apparently and admittedly not done. Resultantly the Money Suit was not dealt in the manner required under the Act. 10. An earnest glance of the Act makes it evident that commercial disputes are required to be dealt with as per the provisions of the Act. The procedure prescribed is different than how a Money Suit is dealt with under the Code of Civil Procedure 1908 mandates that the Commercial Court shall follow the provisions of the CPC as amended by the Act in the trial of a suit in respect of the commercial dispute. Section 16(3) provides that where any provision of any rule of the jurisdictional High Court or any amendment to the CPC by the State Government is R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. in conflict with the provisions of the CPC as amended by the Act the provisions of the CPC as amended by the Act shall prevail. 11. Section 13 of the Act provides for appeals from decrees of Commercial Court and Commercial Division. The present Regular First Appeal has not been preferred under Section 13 of the Act but under Order XLI Rule 1 and 2 of CPC. Resultantly it was placed and considered by the learned Single Judge of this court although in terms of Section 5 of the Act and Notification No.27 HCS Judl. dated 20.08.2016 it ought to have been heard by a Division Bench. In terms of Section 15(2) of the Act after the constitution of the Commercial Courts in Sikkim the court of the learned District Judge which tried the Money Suit would have lost jurisdiction to try it as it related to a commercial dispute and ought to have been transferred to the jurisdictional Commercial Court which had been constituted. The failure of the learned District Judge to examine and transfer the Money Suit to the Commercial Court has resulted in defeating the very object of the enactment of the Act to provide for speedy disposal of high value commercial disputes. 13. We are thus of the considered view that the impugned judgment and decree dated 30.07.2018 passed by the learned District Judge in the Money Suit must be set aside and the R.F.A. No. 018 M s Thomas Enterprises & Anr. vs. M s Yuksom Breweries Ltd. Money Suit transferred to the files of the Commercial Court. The Money Suit shall then be tried by the Commercial Court as per the provisions of the Act. It is accordingly ordered. Pending application is also disposed. Bhaskar Raj Pradhan) Judge 01.11.2021 Judge 01.11.2021 Approved for reporting: yes. to Internet: yes.

In accident claim cases the High court while examining the evidence should only analyze the material placed on record. – Supreme Court of India

The Supreme Court while adjudicating upon a motor accident claim appeal expressed displeasure over the approach adopted by the High Court in Examination of witnesses. The Supreme Court stated that the role of the High Court was to analyze the material on record and not to find faults in the cross-examination and non-examination of witness. This ratio was laid down in the case of Anita Sharma & Ors. Vs. The New India Assurance Co. Ltd. & Anr., Civil Appeal No. 4010-4011 of 2020. The brief facts of the case are that there was a car accident that took place due to which the Petitioner suffered multiple injuries and after-sometime he died owing to the injuries he suffered in the accident. The dependents of the Petitioner filed a case against the Respondent who was the ‘owner-cum-driver’ of the car in which the accident took place. The Petitioners alleged that it was the rash and negligent driving of the respondent that caused the accident and demanded a compensation of Rs. 60,94,000/-. The Petitioner made the insurance company i.e. New India Assurance Co. as a party to the case, as the Respondent’s car was insured by the said company. The Respondent refuted all the claims and contended that the accident was caused due to the rash driving of the truck. The tribunal analyzed the evidences and material placed on record and on the basis of the eye witness present in the car who stated that, “Sanjeev Kapoor i.e. the Respondent was driving the car at a very fast speed when it overtook a vehicle and collided head-on against the oncoming truck”. Based on the testimony the tribunal allowed the claim and granted a compensation of Rs 16,08,000/-. The Respondents filed an appeal in the Rajasthan High Court. The Rajasthan High Court reviewed the evidence and material in the case and set aside the award made by the Tribunal. The High Court observed that the eye-witness had failed to file an FIR with the jurisdictional police and only came and gave a statement when he was called upon by the Claimants. Secondly, the FIR was registered by the owner-cum-driver of the car and if he was rash and negligent in driving why would he do the same. Thirdly, the assertion of the eye-witness had taken the Petitioner to the government hospital was not proved. The insurance company stated that as per the FIR the accident was caused due to the rash driving of the truck whose details could not be recorded by anyone. The High Court on these grounds set aside the award of the Tribunal.

These two appeals which have been heard through video conferencing are directed against the judgment dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Co. Ltd. against the Motor Accident Claims Tribunal’s award dated 01.09.2012 was by the appellant­claimants for enhancement of compensation was and two other occupants. Sanjeev Kapoor who was also its owner 11:55PM but was subsequently referred to the Institute of Medical Sciences and S.S. Hospital BHU Varanasi on 26.03.2009 considering the severity and multiplicity of his injuries. Although he was that Sandeep kept experiencing one after another medical complications and remained hospitalized at the Jain Hospital in Jaipur and later the Joshi Nursing Home at Sikar. His injuries income tax assessee with an Employees Provident Fund and the insurer of the car ­ New India Assurance Co. Ltd. were The insurance company in its separate written statement took information report the accident was caused by an unknown truck which hit the car No. UP­65­AA­7100 and therefore the claim petition The factual averments made in the Claim Petition were denied for the eye­witness Ritesh Pandey according to whom Sanjeev Kapoor was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Tribunal thus assigned liability for the accident upon the respondents and partly allowed the Claim Petition with a compensation of Rs. 16 08 000 was registered on the basis of information furnished by one Pradeep Kumar Aggarwal son of Bal Krishan Das Aggarwal a resident of District travelling in the Wagon R Car No. UP­65­AA­7100 along with three which was being driven rashly and at a fast speed struck against the could not be noticed as it was dark. The car was badly damaged other. The informant himself had not witnessed the accident and hand relied upon the contents of the FIR and the ‘Investigation 13. At this juncture we may refer to the statement of Ritesh Pandey business dealings with the deceased or his family. He has deposed overtook him at a very high speed. He has further deposed that a truck coming from the opposite side collided with the car. Various deposed that he took all the four injured persons to the District Medical Sciences and S.S. Hospital BHU Varanasi. 14. Most importantly the only question asked to this witness in examination. While the Tribunal believed Ritesh Pandey and accepted the claim petition in part the High Court for the reasons and not by Ritesh Pandey leave no persons it is quite natural that the police It is commonplace for most people to be hesitant about being the injured to the hospital. The statement of AW­3 therefore acquires significance as according to him he brought the injured in his car to the hospital. Ritesh Pandeyacted as a good samaritan and a the independence and benevolence of AW­3. Without any personal injured to the hospital for immediate medical aid could not have Court ought not to have drawn any adverse inference against the police had themselves reached the hospital upon having received information about the accident there was perhaps no occasion for 18. Unfortunately the approach of the High Court was not sensitive was by way of disbelieving the testimony of Umed Singh PW 1 to reach the doctor s chamber in order to ensure that an Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court unfortunately was not sensitised enough to appreciate the 15. In a situation of this nature the Tribunal has rightly taken a touchstone of preponderance of probability. The standard of proof witness or confront him with their version despite adequate They did not even suggest the witness that he was siding with the 20. The importance of cross­examination has been elucidated on “278. Section 137 of the Evidence Act defines what cross­ witness on oath in examination­in­chief the objects of which and the questions to be addressed in the course of cross­ examination are to test his veracity to discover who he is 21. Relying upon Kartar Singhin a MACT case this Court in Sunita v. Rajasthan State Road Transport Corporation3 considered the effect of non­examination of the pillion rider as a “30. Clearly the evidence given by Bhagchand withstood the evidence. In turn the High Court has failed to take note of the absence of cross examination of this witness by the respondents leave alone the Tribunal s finding on the same and instead absence from the list is fatal to the case of the appellants. This Court s observation and claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once cast on the veracity of the witness the same should have come out in cross examination for which opportunity was 32. The High Court has not held that the respondents were successful in challenging the witnesses version of events despite said witness was cross examined by the respondents but by selectively overlooking the deficiencies in the respondent s case 22. Equally we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of examining evidence in accident claim cases ought not to be to find fault with non­examination of some best eye­witnesses as may happen in a criminal trial but instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz4 up by the claimants was required to be decided by the learned and certainly not on the basis of proof beyond reasonable one of the contesting respondents in the Claim Petition who along in the result of the case. If the owner­cum­driver of the car were taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement further suggests that he was himself at fault. The High Court therefore ought 24. Further little reliance can be placed on the contents of the FIR First the author of the FIR that is Praveen Kumar Aggarwal does not lodged two days after the accident on 27.03.2009. The FIR recites BHU Varanasi for treatment even though as per the medical report this took place only on 26.03.2009 the day after the accident Therefore the belated FIR appears to be an afterthought attempt to the High Court to disbelieve Ritesh Pandey AW­3 on the other hand 25. Adverting to the claimants’ appeal for enhancement of raised on their behalf as to how the compensation assessed by the Tribunal was inadequate except that in view of the authoritative pronouncement of this Court in National Insurance Co Ltd v Pranay Sethi5 the claimants are entitled to an increase of 40 the High Court is set aside and the appellants are held entitled to compensation as awarded by the Tribunal besides 40% addition in the annual income of the deceased towards ‘future prospects’. The Motor Accident Claims Tribunal Sikaris directed to re­ held entitled to interest @ 8.5% as per the Tribunal’s award on the entire amount of compensation. The Tribunal shall re­calculate the compensation within one month and the insurance company shall

Writ Jurisdiction Discretion Should Not Ordinarily be Exercised if there is an Alternative Remedy: High Court of New Delhi

The writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy which is by raising an application in industrial dispute. This honorable judgement was passed by High Court of New Delhi in the case of ONGC Diploma Engineers Technical Association (DETA) v. Oil and Natural Gas Corporation Ltd. and Ors[W.P.(C) 10482/2019, CM Nos. 43342/2019 & 29274/2020] by Hon’ble Mr. Justice V. Kameswar Rao. The writ petition was filed by the petitioners seeking implementation of Oil and Natural Gas Commission (Recruitment and Promotion) Regulation 1980 and Modified Recruitment & Promotion Regulation 1997 and for quashing and setting aside the Memorandum of Understanding of 2004 with regard to the recruitment and promotion policy of the Diploma holders who were inducted at A-II level after 2004. Some of facts as noted from the record were that the members of the petitioner association were the Diploma holder who had been appointed in terms of the policy under the MoU. The Diploma holders were promoted to the executive cadre EO / AE after four years. The impugned MoU was signed between the ONGC and recognized unions of ONGC primarily for modifying R&P 1980. This down gradation is unfair, illegal and arbitrary. There was also down gradation in the pay scale from Rs.16,000/- to Rs.12,000/-, as per the revised rates of 2000. Therefore, this difference of eight long years deprives the petitioners, their right to be considered for promotion. The respondents were of the view that the writ petition filed by the appellants should be dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. The learned council referred the case of ONGC v. Petroleum Coal Labour Union and Ors. (2015) that ONGC being instrumentality of State is covered under Article 12 of the Constitution of India and M.P. Junior Engineers’ Assn. & Sangarsh Samiti v. State of M.P. 1990 Supp. SCC 229 The court opinioned that, “the MoU / MoS has been entered by ONGC with the recognised unions, one of which is before the Conciliation Officer under Section 12(3) & 18 of the ID Act and statutory remedy is available for the petitioners to raise dispute under the ID Act. Hence, it must be held that the appropriate remedy for the petitioners is to raise an industrial dispute and proceed thereof in accordance with law.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 23.03.2021 O.M.P.96 2016 M S NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner M S AFCONS INFRASTRUCTURE LTD Advocates who appeared in this case: ..... Respondent For the Petitioner For the Respondent Mr Shambhu Sharan and Mr Yaman Kumar Advocates. Mr Sandeep Sethi Senior Advocate with Mr Manu Seshadri Mr Abhijit Lal Mr Aveak Ganguly Advocates. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The petitionerhas filed the present petition under Section 34 of the Arbitration and Conciliation Act 1996 hereinafter the ‘A&C Act’) inter alia impugning the Arbitral Award dated 30.08.2012 passed by the Arbitral Tribunal comprising of Mr. SK JainMr. Amar Singh Chauhan and Mr. P Sridharan. O.M.P.(COMM) 96 2016 The impugned award was rendered in respect of disputes that had arisen between the parties in relation to a contract dated 22.05.2001 hereinafter ‘the agreement’) entered into between the parties for execution of the project involving “Widening to 4 lanes and Rehabilitation of Existing 2 lane Carriageway of Poonamalle Kanchipuram RoadPackage 1 from km 13.80 to km 70.20.” hereinafter ‘the Project”) The respondent submitted its bid on 22.02.2001 which was accepted by NHAI vide Letter of Acceptance dated 09.04.2001 and subsequently an agreement dated 22.05.2001 was executed between the parties. The parties had entered into the agreement for execution of the Project at a contract price of ₹164 37 67 899 . The Project was to be executed within a period of thirty months from 02.07.2001 with a completion date of 31.12.2003. Disputes arose between NHAI and Afcons due to a disagreement on the rate of Item No. 3.02 Wet Mix Macadammentioned in the Bill of Quantity96 2016 of ₹545 per cum for BOQ Item No. 3.02 WMM stood reduced to ₹529.16 per cum and the total amount accepted for executing 1 91 212 cum of the said works amounted to ₹10 11 81 742. This constituted 6.15% of the Contract value after applying the necessary rebate. Admittedly the quantity of the said BOQ item No. 3.02 WMM exceeded the estimated quantity beyond the limits as envisaged under Clause 52.2 of the Conditions of Particular Application The Engineer accepted that there was a change in the quantity that had triggered Clause 52.2 of COPA. However it did not accept the rate of ₹831 per cum as submitted by Afcons and fixed a price of ₹591 per cum. The same was not acceptable to NHAI. The disputes were escalated and the parties were referred to Arbitration. In terms of Clause 67.1 of COPA the disputes between NHAI and Afcons were required to be referred to the Engineer. If the decision of the Engineer was not accepted the disputes were required to be settled by arbitration. In terms of Clause 67.1 of COPA Afcons sent a letter dated 22.04.2008 and referred the disputes to the Engineer. The Engineer rendered his decision on 15.07.2008 accepting the rate of ₹591 per cum O.M.P.(COMM) 96 2016 for the construction of WMM. Afcons did not accept the said decision and notified its intention to refer the disputes to arbitration. Thereafter it nominated an Arbitrator. NHAI also nominated an Arbitrator and both the nominated Arbitrators appointed a Presiding Arbitrator. 10. Afcons filed its Statement of Claims claiming a new rate of ₹831 per cum along with price adjustment for the execution of BOQ Item no. 3.02 WMM. It further claimed that the said rate would be applicable for the entire quantity of WMM executed. Afcons claimed a sum of ₹8 18 89 761 as due on account of execution of the said item. It further claimed interest at the rate of 18% per annum from the date of cause of action till the date of payment of the aforesaid amount. 11. The Arbitral Tribunal considered the rival contentions. It held that in view of the increase in quantities of WMM the BOQ rate contained in the Contract for Item No. 3.02 had been rendered inappropriate and Afcons was entitled to a new rate for the said item. Thereafter the Tribunal proceeded to examine the factors to be considered for determining a new rate and thereafter determined the same. Contract. 12. However the Tribunal had restricted the new rates to the quantities of WMM executed beyond the stipulated period of the 13. The Tribunal found that Afcons had executed 2 10 007.17 cum of WMM during the extended period of the Contract96 2016 to a rate of ₹972 per cum for the said item of WMM work. Thus Afcons was entitled to ₹20 41 26969 for the said works. After accounting for the price adjustment and the amount already paid by NHAI the Arbitral Tribunal awarded a sum of ₹6 99 98 873 in favour of Afcons. The Tribunal also awarded further interest at the rate of 1 30th of 1% per calendar day compounded annually on the aforesaid amount from 07.03.2008 till the date of payment. 14. Mr Shambhu Sharan learned counsel appearing for NHAI had assailed the impugned award on essentially two fronts. 15. First he submitted that the impugned award was fundamentally flawed as the Arbitral Tribunal had accepted a higher rate in respect of the WMM work executed during the extended period of the Contract. However there was no provision in the Contract which contemplated applying new rates during the extended period of the Contract. He submitted that the disputes before the Arbitral Tribunal were in regard to new rates to be determined on account of increase in the quantity of WMM to be executed by Afcons. According to Afcons a new rate was required to be determined in terms of Clause 50.2 of COPA for the entire quantity of WMM executed by it. NHAI contested the said claim as according to NHAI only the quantities that were executed in excess of 125% of the original BOQ quantity would be required to be paid at the new rate. He submitted that neither party had claimed that the new rates would be applicable only for work executed during the extended O.M.P.(COMM) 96 2016 period. He submitted that the delay in completion of the Contract weighed with the Arbitral Tribunal. However the Tribunal erred in not considering Clause 42.2 of COPA which provided for an additional amount to be paid on a lumpsum basis on account of any extension in the period of the Contract. He submitted that the Arbitral Tribunal had erred in taking the same into account while considering Afcons claim in terms of Clause 50.2 of COPA. 16. Second he submitted that the increase had been instructed by the Engineer after due consultation with Afcons. He submitted that Afcons in a meeting held on 13.09.2001 agreed to execute the additional works on the same specifications and at the same rate as provided under the Contract and therefore was precluded from claiming any further amounts. 17. Mr Sandeep Sethi learned Senior Counsel appearing for Afcons countered the aforesaid submissions. He referred to the impugned award and submitted that the increased quantities of WMM covered under the existing Variation Orders were erroneous. He submitted that the Arbitral Tribunal had only considered the quantity of WMM executed that were not covered under the accepted Variation Orders. Next he submitted that while Afcons had claimed that it was entitled to a new rate over the entire quantity of WMM executed by it and the Arbitral Tribunal had accepted its claim yet the Arbitral Tribunal had restricted the same to works executed during the extended period. He submitted that the Arbitral Tribunal had not extended the benefit of the new rate to the works executed during the original Contract period as it O.M.P.(COMM) 96 2016 proceeded on the basis that Afcons had agreed to a pre determined rate for executing the works during the said period and therefore ought to be bound by it. He submitted that although Afcons could have questioned the manner in which the Arbitral Tribunal had restricted its claim nonetheless it had chosen not to do so. However that could not be a ground for NHAI to assail the impugned award as restricting the award in favour of Afcons was not prejudicial to NHAI. 18. Next he submitted that Afcons had not agreed to execute the additional quantity at existing rates and the Minutes of the Meeting dated 13.09.2001 did not record any such Agreement. He stated that the said minutes merely mentioned execution of certain works on the same specifications and NHAI’s contention in this regard is mis conceived. Reasons and Conclusion 19. At the outset it is necessary to note that there is no dispute as to the quantity of WMM work executed by Afcons. The Arbitral Tribunal had noted that Afcons had executed 2 65 229 cum of WMM which included WMM executed under various Variation Order Nos. 5 6 & 7. In all 54 856 cum had been executed under Variation Order Nos. 5 6 & 7. The rates in respect of the said quantities had been fixed and were also subject matter of disputes before another Arbitral Tribunal. Therefore the said quantity was required to be excluded from the total quantity of WMM work executed by Afcons. The Tribunal found that after excluding the said quantity Afcons had executed a total quantity of 2 46 068 cum of WMM which had exceeded the estimated Contract O.M.P.(COMM) 96 2016 quantity by 54 856 cum. The increased quantity was more than 25% of the estimated quantity of WMM under the BOQ. There is also no dispute that the contract value of the additional quantity of WMMexceeded 5% of the contract value. Thus undisputedly Clause 52.2 of COPA was attracted. 20. At this stage it will be relevant to refer to Clause 52.2 of the General Conditions of Contractas well as Sub clause 52.2 of COPA which is the heart of the controversy between the parties. The said Clause is quoted below: “Clause 52.2 of the GCC Power of Engineer to Fix Provided that if the nature or amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof is such that in the opinion of the Engineer the rate or price contained in the Contract for any time of the Works is by reason of such varied work rendered inappropriate or inapplicable then after due consultation by the Engineer with the Employer and the Contractor a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is in his opinion appropriate and shall notify the Contractor accordingly with a copy to the Employer. Until such time as rates or prices are agreed or fixed the Engineer shall determine provisional rates or prices to enable an account payments to be included in certificates issued in accordance with Clause 60. Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub Clause 52.1 or under this Sub Clause unless within 14 days of the date of such instruction and other O.M.P.(COMM) 96 2016 the case of omitted work before commencement of the varied work notice shall have been given either: a) by the Contractor to the Engineer of his intention to claim extra payment or a varied rate or price or b) by the Engineer to the Contractor of his intention to vary a rate or price.” Clause 52.2 of COPA Power of Engineer to Fix Rates Provided further that no change in the rate or price for any item contained in the Contract shall be considered unless such item accounts for an amount more than 5 percent of the Contract Price and the actual quantity of work executed under the item exceeds of falls short of the quantity set out in Bill of Quantities by more than 25 In view of the above it is not disputed that Clause 52.2 of COPA is applicable in the given facts. This is because the quantity of WMM BOQ Item No. 3.02) had exceeded the estimated Contract quantity by more than 25% as against the estimated quantity of 1 91 212 cum. Concededly 2 46 068 cum was executed by Afcons. Admittedly this is more than 25% of the estimated quantity. The BOQ Item No. 3.02 also accounts for more than 5% of the Contract value. In term of Clause 52.2 of COPA Afcons was entitled to revision in the rate. In the aforesaid backdrop the disputes between the parties were essentially related to the question as to whether Afcons was entitled to a new rate for WMM and whether the same was to be applied for the entire quantity that is 2 46 068 cum or only the quantity that O.M.P.(COMM) 96 2016 was in excess of 125% of the estimated quantity 96 2016 “ ..Item 3.02is stated in the BOQ with a quantity of 191 212 cum and corresponding value of Rs. 104 210 540 which is 6.34% of the Original Contract value96 2016 3.02 as per the Engineer rate analysis of Rs. 591 cum stated in Variation Order 16. However pending the agreement with the Contractor and the Employer on the rate of item 3.02 the Engineer will apply in the IPC the BOQ rate to enable the payment according to Sub Clause 60.2 till an agreement is reached…”” In view of the aforesaid letter there is no real dispute that Clause 52.2 of COPA was applicable and a new rate was required to be determined. The dispute was escalated since the parties could not concur on the rate as determined by the Engineer. It is also relevant to note that NHAI had contended before the Arbitral Tribunal that due to an increase in the quantity the rate of WMM is required to be reduced. 28. The Arbitral Tribunal had after examining the rival contentions concluded that Afcons was entitled to a new rate which was based on all aspects and circumstances. In arriving at the said conclusion the Arbitral Tribunal noted various aspects which were relevant for determining whether the rate had become inappropriate or inapplicable. The Tribunal also noted that in Variation Order No. 7 a new rate of ₹950 per cum had been worked out. The said rate had been determined after considering the increase in the rate of plant & machinery fuel indices of petrol oil and lubricants. 29. Afcons had contended that once it is found that the rate has become inappropriate or inapplicable on account of a variation in the quantity of the BOQ item then the new rate so determined would be applicable for the item and the same would be applicable for the entire O.M.P.(COMM) 96 2016 quantity of the item executed. Although the Tribunal found the said contention to be persuasive it did not accept the same in entirety. The Arbitral Tribunal held that Afcons was bound to execute the BOQ items at the rates quoted during the period of the Contract even if the same had become unworkable. But at the same time Afcons could not be compelled to execute WMM at the same rates after the initial period of the Contract had expired as the rates had become inappropriate and inapplicable. In National Highways Authority of India v. Hindustan Construction Co. Ltd.: OMP 73 2016 decided on 28.11.2016 this Court had considered a challenge to an arbitral award where the Arbitral Tribunal had observed as under: “(7) Therefore considering the above analysis Arbitral Tribunal is of the firm view that the revised rate would substitute the existing rate would substitute the existing rate in BOQ and would apply to the revised quantum of the work included in the contract i.e. BOQ item as whole.” 31. This Court had found no ground to interfere with the aforesaid view. A similar view was also expressed by the Division Bench of this Court in JSC Centrodostroy v. National Highways Authority of India: 2014) 1 HCC297. 32. The learned counsel appearing for NHAI also did not dispute that the said question has been a subject matter of disputes before various Arbitral Tribunals and the said view has not been interfered with. O.M.P.(COMM) 96 2016 Undisputedly the subject controversy stands covered by the aforesaid decisions. 33. The Engineer had issued Variation Order No. 16 and the rates therein were not accepted and the disputes had been escalated. The letter dated 18.02.2008 sent by the Engineer also records the controversy in this regard. The Arbitral Tribunal has also noted the decision of this Court in National Highways Authority of India v. Som Datt Builders NCC NEC527 2007 wherein this Court had held that “if the variation exceeds the tolerance limit sat in the Contract renegotiation of the rates would be called for”. This would obviously mean the rate for a particular item and not the quantities executed beyond the specified limits. In view of the above there is merit in Mr Sethi’s contention that NHAI cannot be aggrieved by the impugned award inasmuch as the Arbitral Tribunal has further restricted the applicability of the new rates only to WMM works executed beyond the initial period of thirty months. In any view of the matter a plain reading of the impugned award does indicate that the Tribunal had rejected NHAI’s contention that the new rates were only applicable to quantities executed in excess of 125% of the original estimated quantities as the said interpretation was not supported by the plain language of Clause 52.2 of COPA. There is no ground to interfere with this view. This Court in JSC Centrodostroy v. National Highways Authority of Indiaas well as in National O.M.P.(COMM) 96 2016 Highways Authority of India v. Hindustan Construction Co. Ltd. supra) has found no flaw with the interpretation that once a rate has been found to be inappropriate or inapplicable on account of variation in the quantity beyond the stipulated limit then the new rate would be applicable to the entire item of the work executed. It is trite law that the scope of interference in an Arbitral Award is limited and this interpretation cannot by any stretch be held to be patently illegal or in violation of the fundamental policy of Indian law. In this view this Court finds no reason to interfere with the impugned award inasmuch as it holds that Afcons would be entitled to a new rate for BOQ Item No. 3.02 executed after the initial period of thirty months. 37. The next contention to be examined is whether Afcons is precluded from claiming any change in the rates in view of the Minutes of the Meeting dated 13.09.2001. The attention of this Court was drawn to Paragraph 2 of the said minutes which indicate that certain issues were discussed and decisions were taken. Clauseof Paragraph 2 of the said minutes records that “the contractors representatives agreed for change in specification and construct the items at the rates provided in the contract”. It is important to note that the said meeting took place on 13.09.2001. At that time there was no revision in the quantity of WMM to be executed. It is also apparent that the representatives of Afcons had agreed for a change of specification and had agreed to construct the items at the rates provided in the contract. The said agreement was in the context of change of specifications and it is O.M.P.(COMM) 96 2016 difficult to accept that the same amounted to Afcons agreeing to give up its right under Clause 52 of COPA. In view of the above this Court finds no ground to interfere with the impugned award. The petition is accordingly dismissed. MARCH 23 2021 VIBHU BAKHRU J O.M.P.(COMM) 96 2016

Illicit Extraction of Mines & Minerals amounts to Theft Under Section 379 IPC: Kerala High Court

Illegal extraction of mines and minerals, without a requisite permit or in violation of the permit conditions, will amount to theft under Section 379 of the Indian Penal Code. This auspicious judgment was passed by THE HIGH COURT OF KERALA in the matter of Shybi. C.J vs. State of Kerala and others [WP(C).  No.10387 OF 2020(W)] by the Honourable Mr Justice V.G.Arun. In this case, one Shybi CJ had filed a complaint before the Police alleging that the accused, in the guise of conducting a granite, quarry and crusher unit in the name and style “M/s.Four Star Granites Ltd”, is extracting granite far in excess of the permitted quantity and is thereby committing theft, which is an offence punishable under Section 379 of the IPC. Aggrieved by inaction of the police, he approached the High Court by filing a writ petition. Relying on a recent Supreme Court decision in Jayant vs The State of Madhya Pradesh, learned counsel for the petitioner, contended that illegal extraction/exploitation of natural resources will amount to theft, punishable under Section 379 of IPC. He also referred to the judgment in Kanwar Pal Singh vs The State of Uttar Pradesh in which the Apex Court rejected the contention that, sand being an immovable property as per Section 3(26) of the General Clauses Act, its excavation will not constitute the offence of theft. It was held that, on being excavated, sand loses its attachment to the earth, ergo, it becomes movable property or goods capable of being stolen.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY THE 30TH DAY OF MARCH 2021 9TH CHAITHRA 1943 WP(C).No.10387 OF 2020(W AGED 42 YEARS CHULLIYILLAPLAKKAL HOUSE KOOTAALA P O BY ADV. SRI.C.DHEERAJ RAJAN STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY HOME DEPARTMENT SECRETARIAT INSPECTOR GENERAL OF POLICE THRISSUR RANGE THRISSUR SUPERINTENDENT OF POLICE KALYAN NAGAR AYYANTHOLE THRISSUR 680003 STATION HOUSE OFFICER MANNUTHY POLICE STATION THRISSUR THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 29 01 2021 THE COURT ON 30 03 2021 DELIVERED THE W.P.(C) No.103820 Dated this the 30th day of March 2021 Petitioner is aggrieved by the fourth respondent s failure to take action on Ext.P5 complaint. The allegation in the complaint is that the accused in the guise of conducting a granite quarry and crusher unit in the name and style “M s.Four Star Granites Ltd” is extracting granite far in excess of the permitted quantity and is thereby committing theft which is an offence punishable under Section 379 of the IPC. Sri.Dheeraj Rajan learned Counsel for the petitioner relied on the decision of the Apex Court in Jayant v. State of Madhya Pradesh judgment in Criminal Appeal Nos.824 8220 in support of his contention that illegal extraction exploitation of natural resources will W.P.(C) No.103820 amount to theft punishable under Section 379 of IPC. Particular emphasis was laid on paragraphs 11 and 13 of the judgment which are extracted “11. Now so far as the submission on behalf of the private appellants violators that in view of the fact that violators were permitted to compound the violation in exercise of powers under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences violations there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Section 4 21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules Rule 18 of the 2006 Rules which the private appellants violators paid and therefore the bar contained in sub section 2 of Section 23A of the MMDR Act will be attracted. Section 23A as it stands today has been brought on the Statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any rule made thereunder may either before or after the institution of the prosecution be compounded by the person authorised under Section 22 to make a complaint to the court W.P.(C) No.103820 with respect to that offence on payment to that person for credit to the Government of such sum as that person may specify. Sub section 2 of Section 23A further provides that where an offence is compounded under sub section no proceeding or further proceeding as the case may be shall be taken against the offender in respect of the offence so compounded and the offender if in custody shall be released forthwith Thus the bar under sub section 2 of Section 23A shall be applicable with respect to offences under the MMR Act or any rule made thereunder. However the bar contained in sub section 2 of Section 23A shall not be applicable for the offences under the IPC such as Section 379 and 414 IPC. In the present case as observed and held hereinabove the offences under the MMDR Act or any rule made thereunder and the offences under the IPC are different and distinct offences. Therefore as in the present case the mining inspectors prepared the cases under Rule 53 of the 1996 Rules and submitted them before the mining officers with the proposals of compounding the same for the amount calculated according to the concerned rules and the Collector approved the said proposal and thereafter the private appellants violators accepted the decision and deposited the amount of penalty determined by the Collector for compounding the cases in view of sub section 2 of Section 23A of the MMDR Act and the 1996 rules and even the 2006 rules are framed in exercise of the powers under Section 15 of complaints proceedings for the offences under Sectuibs 4 21 of the MMDR Act are not W.P.(C) No.103820 permissible and are not required to be proceeded further in view of the bar contained in sub section 2 of Section 23A of the MMDR Act. At the same time as observed hereinabove the criminal complaints proceedings for the offences under the IPC Sections 379 414 IPC which are held to be distinct and different can be proceeded further subject to the observations made However our above conclusions are considering the provisions of Section 23A of the MMDR Act as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision reproduced hereinabove and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay W.P.(C) No.103820 reproduced hereinabove we are of the opinion that the violators cannot be permitted to go scot free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay supra) excessive in stream sand and gravel mining from river beds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges sand mining transforms the riverbeds into large and deep pits as a result the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise sand mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands we leave the matter there and leave it to the wisdom of the legislatures and the concerned States W.P.(C) No.103820 13. After giving our thoughtful consideration in the matter in the light of the relevant provisions of the MMDR Act and the Rules made thereunder visa a vs the Code of Criminal Procedure and the Penal Code and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove our conclusions are as under i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order direct the concerned In charge SHO of the police station to lodge register crime case FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process summons for the offences under the MMDR Act and Rules made thereunder iii) for commission of the offence under the IPC on receipt of the police report the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder and iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder when a Magistrate passes an W.P.(C) No.103820 order under Section 156(3) of the Code and directs the concerned In charge SHO of the police station to register lodge the crime case FIR in respect of the violation of various provisions of the Act and Rules made investigation the concerned In charge of the police station investigating officer submits a report the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after process summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub section 1 of Section 23A considering sub section 2 of Section 23A of the MMDR Act there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However the bar under sub section 2 of Section 23A shall not affect any proceedings for the offences under the IPC such as Sections 379 and 414 IPC and the same shall be proceeded with W.P.(C) No.103820 Attention was also invited to the decision in Kanwar Pal Singh v. State of Uttar Pradesh Laws SC 2019 1280]. Therein after referring to the public trust doctrine the Apex Court rejected the contention that sand being an immovable property as per Section 3(26) of the General Clauses Act its excavation will not constitute the offence of theft. It was held that on being excavated sand loses its attachment to the earth ergo it becomes movable property or goods capable of being stolen. The precedents aforementioned leave no room for doubt that illegal extraction of granite without requisite permit or in violation of the permit conditions will amount to theft. The petitioner having submitted Ext.P5 complaint alleging that the accused is extracting granite in excess of the permitted quantity the W.P.(C) No.103820 4th respondent is bound to consider the complaint and take further action In the result the writ petition is disposed of directing the 4th respondent to consider Ext.P5 and take appropriate action thereon within two weeks of receipt of a copy of this judgment V.G.ARUN JUDGE W.P.(C) No.103820 PETITIONER S S EXHIBITS THE TRUE COPY OF THE NOTICE DATED 21.12.2018 ISSUED BY MINING AND GEOLOGY DEPARTMENT THRISSUR THE TRUE COPY OF THE CHALLAN DATED THE TRUE COPY OF THE NOTICE DATED 26.03.2019 ISSUED BY THE MINING AND THE TRUE COPY OF THE CHALLAN DATED THE TRUE COPY OF THE WRITTEN COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE

Court allows bail to the petitioner convicted by lower court on dacoity: Karnataka High Court

The petition is filed under section 439 of CR.P.C ( speaks about special powers of the high court or court of secession regarding bail) seeking regular bail for the offence punishable under section 75( speaks about person conceived a second of an offence punishable under chapter 12 or chapter 17 of the code), 341 ( speaks about punishment for wrongful restraint), 342 ( speaks about punishment for wrongful confinement), 364A ( whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death), 395( punishment for dacoit ), 201( causing disappearance of evidence of offence or giving false to screen offenders) and 120B of IPC ( speaks about whoever party to criminal conspiracy to commit an offence punishable with death) by the petitioner/accused . And the petition is allowed by the High court of Karnataka through the learned bench led by the Honourable MR. Justice H.P. sandesh in case between Abdul Razak vs state of Karnataka( criminal petition no 258/2022) on 20th January 2022. Brief facts of the case are that on 23.08.2021, the accused persons have committed the offence of dacoity and snatched the money from the complainant and out of that, an amount of Rs.10,000/- was transferred in favour of the petitioner and hence he has been arraigned as accused No.8. Arguments presented by the learned counsel for the petitioner that petitioner was the convict and the said order was passed on 28.05.2018 and when he was in custody, the question of transferring the money in favour of the petitioner does not arise. The learned counsel submits that no such money of Rs.10,000/- is transferred in favour of the petitioner. Arguments presented by theLearned High Court Government Pleader appearing for the respondent-State said that the material collected by the Investigating Officer discloses that an amount of Rs.10,000/- is transferred to the account of the petitioner and hence there is a prima facie case against the petitioner. After hearing both the counsels and looking into the records presented before the Honourable court by them that the allegation made against the petitioner, that he has received an amount of rupees 10,000/- and hence he has been arraigned as accused No.8. Whether the amount of Rs.10,000/- was transferred out of the amount which was robbed from the complainant is a matter of trial and the same has to be tested in trial. Looking into the factual aspects of the case and when the petitioner was in custody and being a convict and having taken note of the gravity of the allegations made against the petitioner that he had received and amount of Rs.10,000/- out of robbed amount, I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner and he being a convict cannot be a ground to reject his bail application and the Court has to take note of the material collected against the petitioner in this case and except the allegation of he has received the amount of Rs.10,000/-, no other material. And the petition is allowed by the court that the petitioner shall be released on bail on certain grounds such as: The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with one local surety and one surety of a person from Andhra Pradesh for the like-sum to the satisfaction of the jurisdictional Court; The petitioner shall not indulge in tampering the prosecution witnesses; The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause; The petitioner shall not leave the jurisdiction of the trial court without prior permission of the court till the case registered against him is disposed of. Click here to read the judgement Judgement Reviewed by Sugam Anand Mishra

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.258 2022 BETWEEN: ABDUL RAZAK @ RAZAK S O LATE IQBAL PASHA AGED ABOUT 27 YEARS R AT NO.18 15 NEWTOWN NEAR T.V. STATION KUPPAM CHITTOOR ANDHRA PRADESH 517004. ...PETITIONER BY SRI M. KRISHNE GOWDA ADVOCATE) STATE OF KARNATAKA STATE BY CUBBON PARK P.S. REPTD BY HIGH COURT GOVT. PLEADER HIGH COURT OF KARNATAKA BANGALORE 560001. ...RESPONDENT BY SRI H.S. SHANKAR HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN C.C.NO.32442 2021) OF CUBBON PARK POLICE BANGALORE FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 75 341 342 364A 395 201 120B OF IPC ON THE FILE OF THE VIII ACMM BANGALORE. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.73 2021 of Cubbon Park Police Station Bengaluru for the offence punishable under Sections 75 341 342 364A 395 201 and 120B of IPC. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case of the prosecution is that on 23.08.2021 the accused persons have committed the offence of dacoity and snatched the money from the complainant and out of that an amount of Rs.10 000 was transferred in favour of the petitioner and hence he has been arraigned as accused No.8. The learned counsel for the petitioner would submit that this petitioner was the convict and the said order was passed on 28.05.2018 and when he was in custody the question of transferring the money in favour of the petitioner does not arise. The learned counsel submits that no such money of Rs.10 000 is transferred in favour of the petitioner. Per contra learned High Court Government Pleader appearing for the respondent State would submit that the material collected by the Investigating Officer discloses that an amount of Rs.10 000 is transferred to the account of the petitioner and hence there is a prima facie case against the Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State the only allegation against the petitioner is that he has received an amount of Rs.10 000 and hence he has been arraigned as accused No.8. Whether the amount of Rs.10 000 was transferred out of the amount which was robbed from the complainant is a matter of trial and the same has to be tested in trial. Having taken note of the factual aspects of the case and when the petitioner is in custody and he is a convict and having taken note of the gravity of the allegations made against the petitioner that he had received an amount of Rs.10 000 out of robbed amount I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner and he is a convict cannot be a ground to reject his bail application and the Court has to take note of the material collected against the petitioner in this case and except the allegation of he has received the amount of Rs.10 000 no other material. In view of the discussions made above I pass the The petition is allowed. Consequently the petitioner shall be released on bail in connection with Crime No.73 2021 of Cubbon Park Police Station Bengaluru the offence punishable under Sections 75 341 342 364A 395 201 and 120B of IPC subject to the following conditions: The petitioner shall execute his personal bond for a sum of Rs.2 00 000 with one local surety and one surety of a person from Andhra Pradesh for the like sum to the satisfaction of the jurisdictional Court. ii) The petitioner shall not indulge in tampering the prosecution witnesses. iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates unless exempted by the Court for any genuine cause. iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of. Sd

The suspension of an employee is injurious to his interests and must not be continued for an unreasonable period: Jharkhand High Court

The suspension of an employee is harmful to his rights and should not be extended indefinitely. The selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. The High of Court Jharkhand in the case of Satya Prakash vs. the State of Jharkhand [W.P. (S) No. 2194 of 2020] by Single Bench consisting of Hon’ble Shri Justice Sanjay Kumar Dwivedi. The facts are the petitioner has been put under suspension under Rule 9 of the Rules, 2016 alleging therein that on the recommendation of the Deputy Commissioner on the ground of non-residing at the Circle Headquarter and on a charge of unauthorizedly checking and collecting fine from vehicles outside his jurisdictional area, a recommendation has been made to initiate a departmental proceeding against the petitioner. Aggrieved with this, the petitioner has preferred the writ petition. Learned Counsel for the petitioner submits that without following the principles of natural justice, the suspension order has been passed. He further submits that due to that the petitioner has been put irreparable loss as his prestige is downgraded in the society. He also submits that more than 8 months period has lapsed and despite that, the petitioner is still under suspension and no revocation order has been passed. Learned Counsel for the respondent submits that there is a serious allegation against the petitioner and that is why the petitioner has been put under suspension. She further submits that now the departmental proceeding has already been initiated and that will be completed within a time frame and the petitioner may cooperate in the department proceeding. Relying on this court judgment O.P. Gupta v. Union of India, the court held that “the suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period. Therefore, an order of suspension should not be lightly passed.” Relying on another judgment of the apex court K. Sukhendar Reddy vs. the State of A.P., held that “which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not proceeded against departmentally.”

1 W.P.No. 21920 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 21920 Satya Prakash aged about 48 years Son of Late Abhay Kumar Residing at C o Jai Prakash Kali Shankar Street Hindpiri Near Marwari College Ranchi P.O. & P.S. Hindpiri District Ranchi … Petitioner Versus State of Jharkhand Chief Secretary Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand Principal Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand Joint Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand Ranchi P.O. Dhurwa P.S Jagannathpur Dist. Ranchi Jharkhand 5. Divisional Commissioner North Chotanagpur Division Hazaribagh P.O P.S. Hazaribagh Dist. Hazaribagh Jharkhand 6. Deputy Commissioner Gumla P.O. P.S. & District Gumla Jharkhand … Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the Respondent State Mr. Diwakar Upadhyay Advocate Mrs. Laxmi Murmu S.C. V Heard Mr. Diwakar Upadhyay learned counsel for the petitioner and Mrs. Laxmi Murmu learned counsel for the respondent State This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard on merit The petitioner has preferred this writ petition for quashing the notification dated 01.07.2020 whereby the petitioner has been put under suspension under Rule 9 of the Jharkhand Government Servants Classification Control and Appeal) Rules 2016 2 W.P.No. 21920 The petitioner was posted as Circle Officer Chainpur Gumla on 31.07.2017. A notification dated 01.07.2020 issued by the Joint Secretary Personnel Administrative Reforms and Rajbhasha Department Government of Jharkhand was served to the petitioner whereby the petitioner has been put under suspension under Rule 9 of the Rules 2016 alleging therein that on the recommendation of the Deputy Commissioner Gumla vide his letter dated 06.06.2020 on the ground of non residing at the Circle Headquarter Chainpur and on a charge of unauthorisedly checking and collecting fine from vehicles outside his jurisdictional area a recommendation has been made to initiate a departmental proceeding against the petitioner. Aggrieved with this the petitioner has preferred the writ petition. Mr. Diwakar Upadhyay learned counsel for the petitioner submits that without following the principles of natural justice the suspension order has been passed. He further submits that due to that the petitioner has been put irreparable loss as his prestige is downgraded in the society. He also submits that more than 8 months period has lapsed and in spite of that the petitioner is still under suspension and no revocation order has been passed. He further submits that the case of the petitioner is covered in light of the judgment rendered by the Hon ble Supreme Court in the case of Ajay Kumar Choudhary v. Union of India through its Secretary Others reported in7 SCC 291 Paragraphs 8 9 and 14 of the said judgment are quoted herein “8. The learned Senior Counsel for the appellant however has rightly relied on a series of judgments of this Court including O.P. Gupta v. Union of India where this Court has enunciated that the suspension of an employee is injurious to his interests and must not be continued for an unreasonably 3 W.P.No. 21920 long period that therefore an order of suspension should not be lightly passed 9. Our attention has also been drawn to K. Sukhendar Reddy v. State of A.P. which is topical in that it castigates selective suspension perpetuated indefinitely in circumstances where other involved persons had not been subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts that all the persons who have been privy to the making of the office notes have not been proceeded against 14. More recently the European Convention on Human Rights in Article 6(1) promises that “6.in the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a and in its second sub article that:“ 6.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to Per contra Mrs. Laxmi Murmu learned counsel for the respondent State submits that there is serious allegation against the petitioner and that is why the petitioner has been put under suspension. She further submits that now the departmental proceeding has already been initiated and that will be completed within a time frame and the petitioner may cooperate in the department proceeding. Having heard learned counsel appearing on behalf of the parties the Court finds that admittedly the petitioner was suspended vide notification dated 01.07.2020. It is also an admitted fact that the enquiry has not been completed as yet. In view of the resolution of the Personnel and Administrative Department dated 26.12.2012 the enquiry needs to be completed within 105 days. Rule 9(6)(C) has not been exercised by the authority for extending the suspension order with regard to the petitioner A reference in this regard may be made in case of State of T.N. v Promod Kumar reported in17 SCC 677. Paragraph nos.24 25 4 W.P.No. 21920 26 and 27 of the said judgment are quoted herein below: “24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr. P. Chidambaram learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However the point is whether the continued suspension of the first respondent for a prolonged period is 25. The first respondent has been under suspension for more than six years. While releasing the first respondent on bail liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence Admittedly no complaint is made by CBI in that regard. Even now the appellant has no case that there is any specific instance of any attempt by the first respondent to tamper with 26. In the minutes of the Review Committee meeting held on 27 6 2016 it was mentioned that the first respondent is capable of exerting pressure and influencing witnesses and there is every likelihood of the first respondent misusing office if he is reinstated as Inspector General of Police. Only on the basis of the minutes of the Review Committee meeting the Principal Secretary HomeDepartment ordered extension of the period of suspension for a further period of 180 days beyond 9 7 2016 vide order dated 6 7 2016. 27. This Court in Ajay Kumar Choudhary v. Union of India has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration On the basis of the material on record we are convinced that no useful purpose would be served by continuing the first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the appellant State has the liberty to appoint the first respondent in a non sensitive post.” In view of the well settled provision of law it is well settled that the suspension must necessarily be for a short duration. In this case Rule 9(6 C) has not been invoked for extending the period of suspension or revocation. However eight weeks’ further time is allowed to the respondent 5 W.P.No. 21920 State to conclude the departmental proceeding. If the departmental proceeding is not concluded within the aforesaid period the order of suspension shall automatically be revoked. 10. With the aforesaid observation and direction the writ petition stands Ajay (Sanjay Kumar Dwivedi J

State of Haryana Vs Raja Ram

It is difficult to hold that Raja Ram was not guilty of taking or enacting the prosecutrix out of the keeping of her father’s lawful guardianship Santoshi Rani, aged about 14 years, daughter of one Narian Dass, a resident of village Jor Majra in the district of Karnal was the victim of the offence. Jai Narian, a resident of village Muradgarh, close to village Jor Majra, once visited the house of Narian Dass for treating his ailing sons.When the two boys were cured by Jai Narian, Narian Dass bagan to have a great faith in him and indeed started treating him as his Guru. Jai Narian started paying frequent visits to Narain Dass’s house and apparently began to cast an evil eye on Santoshi Rani.He persuaded her to accompany him by inducing her to believe that though she was made to work in her parent’s house she was not even given proper food and clothes by her parents who were poor.He promised to keep her like a queen having nice clothes to wear, good food to eat and also a servant at her disposal.On one occasion Narian Das happened to see Jai Nariaan talking to Santoshi Rani and felt suspicious with the result that he requested Jai Narian not to visit his house any more. He also reprimanded his daughter to be away from Jai Narian. Having been prohibited from visiting Narian Dass’s house Jai Narian started sending messages to Santoshi Rani through Raja Ram respondent who is jheewar and has his house about 5 or 6 karams away from that of Narian Dass. As desired by Jai Narian, Raja Ram persuaded Santoshi Rani to go with him to the house of Jai Narian.On April 4, 1968, Raja Ram contacted Santoshi Rani for the purpose of accompanying him to Jai Narian’s house. Raja Ram’s daughter Sona by name, who apparently was somewhat friendly with Santoshi Rani should come to the house of Raja Ram at midnight.Santoshi Rani as desired, went to Raja Ram’s house on the night of April 4 and 5, 1968, when Raja Ram took her to Bhishamwala well. Jai Narian was present at the well at that time. Leaving Santoshi Rani there, Raja Ram went to bring Jai Narian, whom he brought after sometime, and handing over Santoshi Rani to Jai Narian , Raja Ram returned to his house.On April 13,1968, S.H.O. Police Station Indri saw Jai Narian and Santoshi Rani coming from the side of Dera Waswa Ram. Jai Narian was taken into custody. Santoshi Rani had a jhola which contained one suit and a shawl and two chunis which were taken into possession. The salwar of Santoshi Rani appeared to have on it stains of semen.The learned Second Additional Sessions Judge, Karnal, who tried them, convicted Jai Narain alias Bawa Under Section 378, IPC and sentenced him to rigorous imprisonment for six years and fine of Rs. 500/- or in default to further rigorous imprisonment for six months.Both the convicts appealed to the High Court of Punjab & Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction and sentence but acquitted the respondent Raja Ram of the charge Under Section 366. IPC It is against the order of the respondent’s acquittal that the State of Haryana has appealed to this Court. ISSUE BEFORE THE COURT: Whether Raja Ram could be held guilty of offence under Section 366, Indian Penal Code?Whether the accused could be held guilty of offence under Section 361, Indian Penal Code? RATIO OF THE COURT The court held that in the present case evidence establishes beyond doubt:That Jai Narian had tried to become intimate with the prosecutrix and to seduce her to go and ive with him and on objection habving been raised by her father who asked Jai Narian not to visit his house, Jai Narian started sending messages to the prosecutrix through Raja Ram, respondent;That Raja Ram, respondent, had been asking the rposecutrix to be ready to accompany Jai Narian;That at about 12 noon on April 4, Raja Ram went to see the prosecutrix at her house and asked her to visit his house when he would convey Jai Narian’s message to her;That on the same day after sometime Sona was sent by her father to the house of the prosecutrix to fetch her to his house where the prosecutrix was informed that Jai Narian would come that night and would take the prosecutrix away and;That Raja Ram accordingly asked the prosecutrix to visit his house at about midnight s that she may be entrusted to Jai Narian.The Court after the consideration of all the evidences held that Raja Ram cannot escape conviction for the offence of kidnapping her from her father’s lawful guardianship. It was not at all necessary for Raja Ram to have himself gone to the the prosecutrix to bring her from there on the midnight in question. It was sufficient if he had earlier been soliciting or persuading her to leave her father’s house to go with him to Jai Narian. It is fully established on the record that he had been conveying messages from Jai Narian to prosecutrix and had himself been persuading her to accompany him to Jai Narian’s place where he would hand over to him.On the facts it is difficult to hold that Raja Ram was not guilty of taking or enacting the prosecutrix out of the keeping of her father’s lawful guardianship. Raja Ram’s action was to proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Ram’s persuasive offer to take her to Jai Narian the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian, as she actually did.The fact that the prosecutrix was easily persuaded to go with Raja Ram would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial and it would be equally so even if the proposal to go with Raja Ram had been emanated from her.There is no doubt a distinction between allowing and taking a minor to accompany a person but the present is not a case of prosecutrix herself leaving her father’s house without any inducement by Raja Ram who merely allowed her to accompany him. DECISION HELD BY COURT: The court held the decision that enabling it to set aside the verdict of the jury and examine the evidence for itself. In the present case the, acquittal by the High Court is clearly erroneous both on facts and in law and keeping in view the nature of the offence committed the court considered that there is clearly failure of justice justifying interference by this Court under Article 136 of the Indian Constitution.The result is that the appeal is allowed and setting aside the order of the High Court acquitting Raja Ram, respondent, the court restored the order of the Second Additional Sessions Judge affirming both the conviction and sentence as imposed by the trial court. Raja Ram, respondent should surrender to his bail bond to serve out the sentence.

Equivalent Citation: AIR1973SC819 1973CriLJ651 should come to the house of Raja Ram at midnight. The prosecutrix as desired went to Raja Ram s house on the night between April 4 and 5 1968 when Raja Ram took her to Bhishamwala well. Jai Narain was not present at the well at that time. Leaving the prosecutrix the Raja Ram went to bring Jai Narain whom he brought after some time and handing over the prosecutrix to Jai Narain Raja Ram returned to his own house. On the fateful night it appears that Narain Das was not in the village having gone to Karnal and his wife was sleeping in the kitchen. The prosecutrix along with her two younger sisters was sleeping in the court yard her elder brotherwas in the field. It was in these circumstances that the prosecutrix had gone to the house of Raja Ram from where she was taken to Bhishamwala well. 3. On the following morning when Abinash Kumar who is also sometimes described as Abinash Chander Singh brother of the prosecutrix returned from the field to feed the cattle the prosecutrix was found missing from her bed. Abinash had returned to the house at about 4 a.m. He woke up his mother and enquired about Santosh Rani s whereabouts. The mother replied that the prosecutrix might have gone to ease herself. After waiting for about half an hour Abinash Kumar went to his grandfather who used to reside in a separate adjoining 2 | P a g e Briefcased.in Case Name: State of Haryana Vs. Raja Ram Case Year: 1972 house and informed him about this fact. After having searched for her unsuccessfully Abinash went to Karnal to inform his father about it. The father and the son returned from Karnal by about 10 a.m. The search went on till afternoon but the prosecutrix was not found. The father after having failed in his search for the missing daughter lodged the first information reportwith the officer in charge of the Police Station Indri. Confirmed suspicion" was cast in this report on Jai Narain Bawa Moti Ram resident of Sambli who was stated to be a bad character and absent from the village. It was added in the F.I.R. that about 5 or 6 months earlier Narain Dass had prevented Jai Narain from visiting the former s house as a result of which the latter had held out a threat to the former. On April 13 1968 at about 7 a.m. Ram Shah S.H.O. Police Station Indri along with three other persons and Narain Dass saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. As they reached near Dera Ganga Singh Narain Dass identified his daughter and Jai Narajn accused was taken into custody. The prosecutrix had a jholawhich contained one suit and a shawl and two chunis which were taken into possession. The salwar of the prosecutrix appeared to have on it stains of semen. 4. After investigation Jai Narain aged 32 years and Raja Ram the respondent were both sent up for trial the former Under Sections 366 and 376 IPC and the latter Under Sections 366 and 376 109 IPC They were both committed to the court of Sessions. The learned Second Additional Sessions Judge Karnal who tried them convicted Jai Narain alias Bawa Under Section 378 IPC and sentenced him to rigorous imprisonment for six years and fine of Rs. 500 or in default to further rigorous imprisonment for six months. The respondent was convicted Under Section 366 IPC and sentenced to rigorous imprisonment for 11 2 years and fine of Rs. 50 or in default to rigorous imprisonment for two months. Jai Narain was acquitted of the charge Under Section 366 IPC and the respondent of the charge Under Sections 376 109 IPC 5. Both the convicts appealed to the High Court of Punjab & Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction and sentence but acquitted the respondent Raja Ram of the charge Under Section 366. IPC It is against the order of the respondent s acquittal that the State of Haryana has appealed to this Court. 6. It appears that the respondent had not entered appearance in this Court within 30 days of the service on him of the notice of lodgment of the petition of appeal. He applied for condonation of the delay though according to him no such application was necessary. The permission to enter appearance was granted by this Court at the time of the hearing. 7. In the High Court Shri K. S. Keer the learned Counsel appearing for Raja Ram contended that even if the case of the prosecution as made out from the evidence of the prosecutrix herself and supported by the testimony of her father Narain Dass her mother Tara Wanti and her brother Abinash Kumar is admitted to be correct no offence could be said to have been committed by Raja Ram Under Section 366 IPC Apparently it was this argument which prevailed with the High Court. The learned single Judge after briefly stating the facts on which the prosecution charge was founded accepted the only contention raised before him expressing himself thus : 3 | P a g e Briefcased.in Case Name: State of Haryana Vs. Raja Ram Case Year: 1972 The question which arises is whether in the face of these facts stated by the prosecutrix Raja Ram could be held to be guilty of offence Under Section 366 Indian Penal Code. In order that an accused person may be guilty of offence Under Section 366 Indian Penal Code prosecution has to show that the woman was kidnapped or abducted in order that she might be forced or seduced to illicit intercourse or knowing it to be likely that she would be so forced or seduced. In other words the prosecution must show that there was either kidnapping or abduction. Section 361 Indian Penal Code which defines kidnapping says that when any person takes or entices any minor under the age of 18 if a female out of the keeping of law guardianship of such minor without the consent of such guardian commits kidnapping. The girl left the house of her father at midnight of her free will. Raja Ram appellant did not go to her house to persuade her and to bring her from there. She chose the dead of night when other members of the family were according to her own statement fast asleep. Soon after reaching the house of Raja Ram who she says was waiting for her and that suggests that she had on her visit during the day so settled with him that she agreed to accompany him to Bhishamwala well. These facts leave no doubt that she was neither enticed nor taken by Raja Ram from the lawful guardianship of her parents. She has herself chosen to accompany Raja Ram and to be with Jai Narain appellant. It could not be said that the girl went with Raja Ram either by use of force or on account of any kind of persuasion on the part of Raja Ram. Under the circumstances it could not be held that the girl had been taken or seduced from the custody of her parents. The girl reached at that odd hour to carry into effect her own wish of being in the company of Jai Narain appellant. In view of these facts it could not be held that Raja Ram was guilty of the act of either taking away the girl or seducing her out of the keeping of her parents. The word take implies want of wish and absence of desire of the person taken. Once the act of going on the part of the girl is voluntary and conformable to her own wishes and the conduct of the girl leaves no doubt that it is so Raja Ram appellant could not be held to have either taken or seduced the girl. The learned single Judge also excluded the offence of abduction by observing that Raja Ram had neither compelled the prosecutrix by force nor had he adopted any deceitful means to entice her to go from her house to that of Jai Narain. 8. The approach and reasoning of the learned single Judge is quite manifestly insupportable both on facts and in law. It clearly ignores important evidence on the record which establishes beyond doubt that the prosecutrix had been solicited and persuaded by Raja Ram to leave her father s house for being taken to the Bhishamwala well. Indeed earlier in his judgment the learned single Judge has himself observed that according to the statement of the prosecutrix on receipt of Raja Ram s message as conveyed through his daughter Sona she contacted Raja Ram during day time in his house and agreed with him that sheto go to Bhishamwala well at midnight to meet Jai Narain as the other members of her family would be sleeping at that time. If according to the learned single Judge it was in this background that the prosecutrix had left her father s house at midnight and had gone to the house of Raja Ram from where she accompanied Raja Ram to the Bhishamwala well it is difficult to appreciate how Raja Ram could be absolved of his complicity in taking the prosecutrix out of the keeping of her father her lawful guardian without his consent. It was in our opinion not at all necessary for Raja Ram himself to go to 4 | P a g e Briefcased.in Case Name: State of Haryana Vs. Raja Ram Case Year: 1972 the house of the prosecutrix at midnight to bring her from there. Nor does the fact that the prosecutrix had agreed to accompany Raja Ram to Bhishamwala well take the case out of the purview of the offence of kidnapping from lawful guardianship as contemplated by Section 361 IPC This is not a case of merely allowing the prosecutrix to accompany Raja Ram without any inducement whatsoever on his part from her house to Bhishamwala well. Section 361 IPC reads : 361. Kidnapping from lawful guardianship Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. Explanation. The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose. The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor...out of the keeping of the lawful guardian of such minor" in Section 361 are significant. The use of the word "keeping" in the context connotes the idea of charge protection maintenance and control further the guardian s charge and control appears to be compatible with the independence of action and movement in the minor the guardian s protection and control of the minor being available whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section. 9. In the present case the evidence of the prosecutrix as corroborated by the evidence of Narain Das P.W. 1Abinash Chander P.W. 3and Smt. Tarawanti P.W. 4convincingly establishes beyond reasonable doubt :that Jai Narain had tried to become intimate with the prosecutrix and to seduce her to go and live with him and on objection having been raised by her father who asked Jai Narain not to visit his house Jai Narain started sending messages to the prosecutrix through Raja Ram respondent that Raja Ram respondent had been asking the prosecutrix to be ready to accompany Jai Narain that at about 12 noon on April 4 Raja Ram went to see the prosecutrix at her house and asked her to visit his house when he would convey Jai Narain s message to her5 | P a g e Briefcased.in Case Name: State of Haryana Vs. Raja Ram Case Year: 1972 that on the same day after some time Sona was sent by her father to the house of the prosecutrix to fetch her to his house where the prosecutrix was informed that Jai Narain would come that night and would take the prosecutrix away andthat Raja Ram accordingly asked the prosecutrix to visit his house at about midnight so that she may be entrusted to Jar Narain. This evidence was believed by the learned Additional Sessions Judge who convicted the respondent as already noticed. The learned single Judge also did not disbelieve her statement. Indeed in the High Court the learned Counsel for Raja Ram had proceeded on the assumption that the evidence of the prosecutrix is acceptable the argument being that even accepting her statement to be correct no offence was made out against Raja Ram. Once the evidence of the prosecutrix is accepted in our opinion Raja Ram cannot escape conviction for the offence of kidnapping her from her father s lawful guardianship. It was not at all necessary for Raja Ram to have himself gone to the house of the prosecutrix to bring her from there on the midnight in question. It was sufficient if he had earlier been soliciting or persuading her to leave her father s house to go with him to Jai Narain. It is fully established on the record that he had been conveying messages from Jai Narain to the prosecutrix and had himself been persuading her to accompany him to Jai Narain s place where he would hand her over to him. Indisputably the last message was conveyed by him to the prosecutrix when she was brought by his daughter Sona from her own house to his and it was pursuant to this message that the prosecutrix decided to leave her father s house on the midnight in question for going to Raja Ram s house for the purpose of being taken to Jai Narain s place. On these facts it is difficult to hold that Raja Ram was not guilty of taking or enticing the prosecutrix out of the keeping of her father s lawful guardianship. Raja Ram s action was the proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Ram s persuasive offer to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian as she actually did. Raja Ram actively participated in the formation of the intention of the prosecutrix to leave her father s house. The fact that the prosecutrix was easily persuaded to go with Raja Ram would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial and it would be equally so even if the proposal to go with Raja Ram had emanated from her. There is no doubt a distinction between taking and allowing a minor to accompany a person. But the present is not a case of the prosecutrix herself leaving her father s house without any inducement by Raja Ram who merely allowed her to accompany him. 10. On behalf of the appellant State our attention was drawn to some of the English decisions for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English law. The learned Counsel cited Reg. v. Job Timmins 169 E R 1260 Reg. v. Handley and Anr. 175 E R 890 and Reg. v. Robb 176 E 466 . In the first case Job Timniins was convicted of an indictment framed upon 9 Geo. IV c. 31 Section 20 for taking an unmarried girl under sixteen out of the possession of her father and against his will. It was observed by Erie C.J. that the Statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in 6 | P a g e Briefcased.in Case Name: State of Haryana Vs. Raja Ram Case Year: 1972 such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV c. 31 Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created but if her going away with the prisoner is entirely voluntary no offence is committed. The last case was of a conviction under the Statute (24 & 25 Vict. c. 100 Section 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the Statute. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping" as used in Section 361 IPC But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care charge and control of the parent: see Reg v. Manketelow. 6 Cox. Crim. Cases 143. These decisions only serve to confirm our view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards. 11. On behalf of the respondent it was contended as a last resort that this Court should be slow to interfere with the conclusions of the High Court on appeal from an order of acquittal and drew our attention to an unreported decision of this Court in Shantiranjan Majumdar v. Abhoyananda Brahmachari and Ors.Crl. A. No. 260 decided on 14th September 1964. The decision cited was given by this Court on appeal by the complainant. In any event it was observed there that the complainant appellant had not been able to satisfy the court that any grave miscarriage of justice had been caused with the result that he could not be permitted to urge grounds other than those which are fit to be urged at this time of obtaining special leave to appeal. The decision of the High Court there could not "even remotely be characterised as unreasonable" to use the language of this Court though it might have been possible to take the view that the circumstances found by the High Court were not adequate for enabling it to set aside the verdict of the jury and examine the evidence for itself. In the present case the acquittal by the High Court is clearly erroneous both on facts and in law and keeping in view the nature of the offence committed we consider that there is clearly failure of justice justifying interference by this Court under Article 136 of the Constitution. The result is that the appeal is allowed and setting aside the order of the High Court acquitting Raja Ram respondent we restore the order of the Second Additional Sessions Judge affirming both the conviction and sentence as imposed by the trial court. Raja Ram respondent should surrender to his bail bond to serve out the sentence. 7 | P a g e

If the absence of motive is accepted, it is of little importance and pales into insignificance when the crime is established by direct evidence: Gauhati High Court

When there is direct, credible witness testimony as to the commission of an offence, the motive element of the equation is nullified. As a result, if the origin of the purpose for the event is not established, the visual testimony of the witnesses as to the event cannot be discounted just because of the lack of motive, if the evidence is otherwise trustworthy. The judgment was passed by the High Court of Gauhati in the case of Kameswar Majhi v. State of Assam [CRL.A(J)/126/2018] by Division Bench consisting of Hon’ble Justice N. Kotiswar Singh & Justice Soumitra Saikia. The facts of the case are that the accused Kameswar Majhi called the deceased, his niece and her husband. While the deceased was preparing tobacco, the accused armed with a dao attacked the deceased from behind beheading him. the deceased, died instantaneously as his head was severed from his body on being attacked with a dao by the accused. The FIR filed, was duly received and registered under Section 302 IPC. The learned trial court convicted the appellant under Section 302 IPC sentencing him to undergo rigorous imprisonment for life and a fine of Rs.1,000/ and in default of payment of fine to undergo rigorous imprisonment for another 1 month. The Sessions Judge did not consider the case to be within the category of rarest of the rare cases and, therefore, declined to pass an order of death sentence. The learned counsel for appellant submits that the trial Court convicted the accused solely on the circumstantial evidence and that there was no eye-witness to the incident alleged. He further submits that the depositions of witnesses are unreliable in view of the discrepancies pointed out hereinabove. He further referred to the medical opinion and submits that since further medical investigation relating to the blood stains found on the victim’s body were not examined and which in the opinion of the medical expert was necessary to ascertain as to whether the blood stains on the body and the head belonged to the same person, the medical evidence presented during trial cannot be relied upon to prove the guilt of the accused. Learned counsel for the respondent submits that it is evident from the perusal of the depositions of the witnesses that the witnesses had given their depositions after about 9 or 10 years after the incident had taken place. He, therefore, submits that these depositions were given by the witnesses recollecting the sequence of the events from their memories. Therefore, there may be minor discrepancies in the narration of the sequence of the events in the depositions of the witnesses, which ought to be ignored. He submits that such discrepancies will not scuttle the prosecution’s case against the accused.

Page No.# 1 14 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 81 2018 GONESH BHOMIJ S O. LT. SAMSING BHIMIJ R O. NALANI T.E. KHAMUTI GOWALI NATUN LINE P.S. TINSUKIA DIST. TINSUKIA ASSAM. THE STATE OF ASSAM REP. BY PP ASSAM. BEFORE:: HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the Petitione r Mr. Mrinmoy Dutta Amicus Curiae. Advocate for the Respondent : Ms. B. Bhuyan Addl.P.P. JUDGMENT & ORDER(CAV) N. Kotiswar Singh J) Page No.# 2 14 Heard Mr Mrinmoy Dutta Ld. Amicus Curie for the appellant and Ms. B. Bhuyan Ld. Additional Public Prosecutor Assam for the State. The present appeal has been preferred against the judgement and order dated 18 07 2018 passed in Sessions Case No. 96 of 2016 by the Court of Sessions Judge Tinsukia convicting the appellant under Section 302 I.P.C. and the sentencing him to undergo Rigourous Imprisonment for life. The facts of the case as unfolded in course of the trial in brief are that an FIR was lodged on 20 04 2016 by the younger brother of the deceased Smt. Saraswati Bhumij that on the previous night of 19 06 2016 her husband the appellant herein assaulted her and on proceeding to his sister’s place he found her lying dead inside the house suspected of being killed by the appellant. An investigation was accordingly carried out and on completion of the same the appellant was charge sheeted. The prosecution ex amined as many as 8 witnesses. The defence however denied the charges and did not adduce any evidence. The Ld. Sessions Judge on the basis of the testimonial and other evidences brought on record convicted the appellant under Section 302 IPC. As can be seen from the records there was no eyewitness as to the commission of the crime but there were circumstantial evidences clearly pointing the guilt to the appellant. Sri Gram Bhumij was the P.W.1 who testified that the deceased was his stepmother and the appellant his father. He stated that his younger sister Gita came to his house and told him that her mother was not found in the house and asked him to search for her. He then went to the house of the stepmother and upon searching found her in a pond and by that time she had died. He then brought out his stepmother from the pond. He also noticed injury marks on her upper lip. P. W. 1 also stated that the relation between his father and the stepmother was strained and they used to quarrel frequently and as his father used to create nuisance in the house he resided separately. Page No.# 3 14 Sri Gram Sawashi P.W.2 lived in the neighbourhood of the appellant. He testified that one day in the morning at about 9 AM the appellant came to him and told him that his wife had high fever in the night and she died in the morning. When he went to the house of the appellant he found the dead body lying on the ground but he noticed injury mark on her upper lip. He also stated that when he enquired from the neighbours they told him that the deceased had high temperature the night before and as such she died. P.W. 2 was declared hostile on the prayer of the Prosecution and was cross examined by the Prosecution. He admitted that he came to know in the morning at about 7 AM that he learnt from the people in the locality that the wife of the appellant was lying dead in the pond. He also admitted that he had stated before the police that he had heard from the villagers that on the previous night the appellant had a quarrel with the deceased after taking liquor and the he killed her and had thrown her in the pond. On being cross examined by the defence P.W. 2 stated that he heard from the villagers that the deceased had a high fever and as such she jumped into the pond. P.W. 3 is the younger sister of the deceased. She was not an eyewitness. She was also informed by the daughter of the deceased that the appellant had a quarrel with the deceased the previous night and the appellant assaulted her with a bottle and thereafter thr own her in the pond and later she was brought back in the morning in dead condition. P.W. 3 thereafter lodged the ejahar in the police station. She was a witness to the inquest report and she stated that she had noticed injury on the head of the deceased. She also stated that the relation between the appellant and the deceased was not cordial as they used to quarrel. P.W. 4 was the President of Assam Chaa Majdoor Sangha of Nalini Tea Estate and he knew both the appellant and the deceased. He testified that the son of the accused Gram P.W.1) told him that his mother was suffering from fever. However when he reached their home he found that the deceased was lying on the ground and her body covered with a cloth. On being asked Gita the daughter of the appellant told him that that the previous night the appellant had assaulted the deceased. Then he advised them that it is not wise to bury the dead body. Rather the police should be informed. He testified that when Gita told him about the incident the appellant was also present. Page No.# 4 14 The most significant witness was Gita Bhumij P.W. 5 the daughter of both the deceased and the appellant. When she testified before the trial court she was about seven years of age. She testified that on the previous night of the incident her father had assaulted her mother and hit her mouth with a wine bottle. Thereafter her father threw away the dead body of her mother in the pond. Then she went to the house of her elder brother Sukru. When she returned to her house on the next day morning her mother had died. Thereafter her father and another brother Grambrought out the dead body of her mother from the pond to the house and changed the wearing apparel of her mother. She also stated that the police interrogated her and she was produced before the Magistrate for recording her statement. She also stated that she went to the court along with her brother Gram for making her statement before the Magistrate. P.W. 6 was the doctor who conducted the post mortem on the body of the deceased. He testified that he found the following injuries “One lacerated wound measuring 1 cm x 0.5 cm x 0.5 cm seen over the upper lip in the middle below the nose with swelling of the wound. Bruise seen in the inner side of the upper lip.” He also found that stomach contained food materials and sand particles with water and in his opinion death was due to asphyxia as a result of ante mortem drowning and the approximate time since death was 24 to 48 hours. However he stated that he cannot say whether the drowning was suicidal accidental or P.W. 7 was the Addl. C.J.M. who had recorded the statement of Gita Bhumij P.W. 5 the homicidal in nature. minor daughter of the deceased. P.W. 8 was the I.O. of the case. The appellant in his examination under Section 313 of the CrPC denied the allegations and the depositions made against him. However he agreed to the statement of P.W.1 Gram Bhumij that upon finding the dead body in the pond he lifted it to the ground. The Ld. Trial Court held that the death of the deceased due to asphyxia as a result of Page No.# 5 14 ante mortem drowning was proved so as the injury caused on upper lip of the deceased which was caused by the appellant by hitting her with a bottle. The Ld. Trial Court also held that the evidence of the child witness Gita Bhumijthe daughter of the deceased and the appellant was credible so are the evidences of other witnesses Gram Bhumij P.W.1 and Birsa Kurmi P.W.4 which had corroborated evidence of Gita Bhumij P.W.5. The trial court also held that non recovery of the bottle which was used by the appellant to hit the deceased at the time of occurrence was to be merely a faux pas which does not go to the root of the prosecution. Accordingly the Ld. Trial Court held that it was proved beyond all reasonable doubts that on the day of occurrence the appellant had hit the deceased on her mouth with a bottle and thereafter threw her into a pond after which she died of drowning which was corroborated by the medical evidence and accordingly convicted the appellant under Section 302 of the IPC. As to the death of the deceased in an unnatural manner it is clearly evident from the forensic report which clearly indicates that the deceased died because of asphyxia due to That there is a pond in the house of the appellant is proved and that there are evidences especially as per evidences of P.W.1 to show that the body of the deceased was recovered from the pond. Thus in the light of the forensic evidence the death of the deceased due to drowning can be said to have been proved. The question to be considered by this Court is whether the appellant is responsible for her death by drowning as the prosecution has projected to be the case or was it suicidal as sought to be suggested by the appellant or is it the case of no evidence against the appellant so that he may be given the benefit of doubt as to be not responsible for the death of the on the pond From the perusal of the evidences on record what one notices is that there was no eye witness at the actual time of death by drowning. Nobody excluding Gita Bhumij the daughter of the deceased was present when her mother was hit by the appellant. But she also did not say in categorical terms that her father the appellant had pushed her mother Page No.# 6 14 thus drowning her though she states before the court that on the date of the incident and there was a quarrel between her father and her mother about 12 midnight and her father assaulted her mother on her mouth with a wine bottle. Thereafter her father threw away the dead body of her mother in a pond. Then she went to the house of her elder brother Sukru and in the next morning when she came to her house she found her mother dead. Thereafter her father and her brother Gram brought out the dead body of her mother from the pond to their house and the changed the wearing apparel of the deceased. 18. We will compare her testimony before the trial court with her statement recorded under Sec. 164 CrPC. In her Sec. 164 CrPC statement she stated that on 19.04.2016 at night there was a quarrel between her father and mother and her father hit her mother with a bottle and seeing this she got frightened and ran away to the house of her uncle where she stayed that night. She stated that in the morning when she came home she found her mother lying on the floor of the house dead. Thereafter people gathered in their house. She also stated that the appellant used to beat her mother often and even used to assault her. Her elder brother lived in the house of her uncle as he was ousted by her father. She categorically stated that she saw her father hitting her mother with a bottle. Thereafter she did not see Juxtaposing the statement of the child witness who was about seven years old made under Section 164 CrPC with her statement made before the trial court it can be said without any doubt that there was a quarrel the previous night between her father and mother and that her father hit her mother with a bottle. Thus the fact that there was a quarrel and the appellant hit the deceased with a bottle which resulted in the injury caused on the upper lip which is corroborated by medical evidence can be said to have been proved beyond any reasonable doubt. It is also to be noted that though the P.W. 5 stated in her statement before the trial court that the appellant assaulted the deceased and thereafter had thrown her in the pond it was not stated by her in her statement recorded under Section 164 Cr.P.C. In her statement made under Section 164 Cr.P.C. she said that she saw her father hitting her mother with a bottle and thereafter she did not see anything. Thus there seems to be certain lack of consistency in the evidence about the case of the Prosecution that the body of the deceased Page No.# 7 14 being thrown by the appellant in the pond. However what happened thereafter resulting in the death of the deceased and that the appellant is responsible for her death is a matter for the Prosecution to prove. Since there was apparently no eyewitness as to the happening when the death of the deceased actually occurred except for what had been stated by P.W.5 before the trial court the same has to be examined with the aid of the circumstantial evidences and other evidences on record. If the statement of P.W.5 that her father threw her deceased mother in the pond is to be held to be proved the circumstantial evidences will be complete to fasten the guilt to the appellant. Thus this Court has to examine as to the existence of any corrobor ative evidence to what P.W.5 had stated before the trial court. It may be noted that the fact remains that the medical report shows that the stomach of the deceased contained food material and sand particles with water and the doctor had opined that the deceased died due to asphyxia as a result of drowning which is possible only when the deceased was brought to the pond. Though there is no direct witness to testify that the appellant had thrown the deceased in the pondthat is the only possibility unless the deceased herself went to the pond and got drowned which could be either suicidal or accidental. There is evidence to the effect that the body was found in the pond as testified by P.W.1 the stepson of the deceased who stated that he brought out the body from the pond. It is in this context that the explanation of the appellant becomes crucial. But the appellant did not offer any explanation and on the contrary made a suggestion that the deceased jumped in the pond as she had high fever as can be seen from the cross examination of P.W. 2 Gram Sawashi a neighbour. In order to appreciate this issue it would be necessary to keep in mind that the incident occurred within the boundary of the house of the appellant in a night time in a village. There is nothing on record to show that there were other persons inside the house except the appellant the deceased and their daughter P.W. 5. As such the possibility of any other third person to be involved in the incident is almost non existent. It is to be also noted if the statement of the P.W. 5 is to be believed that she ran away from the house being Page No.# 8 14 frightened after her father the appellant hit her mother on her face then only the appellant and the deceased were in the house and no other person. Under such circumstances as per the testimony of P.W. 5 even if her testimony that she saw the appellant throwing her deceased mother in the pond is not fully accepted the fact remains that the appellant was the last person seen with the deceased in the house and since the appellant was the only person alive at the relevant time he had an explanation to offer. He was the best person to explain what actually happened to the deceased after he hit her on her face since the fact that he hit her on the face is already proved by the evidence of P.W.3 which is fully corroborated by the medical evidence. The fact that the appellant hit the deceased with a bottle on the face would show that he was in a dominating position. Further the deceased was hit with a bottle on the face it will certainly have a disorienting effect on her. Under such circumstances in all probability the appellant threw the deceased on the pond next to their house where she got drowned. This view is quite consistent with the evidences on record. Any other view including that the deceased went on her own to the pond where she drowned does not appear to be consistent with the evidences. If the deceased out of anger had run out and jumped on the pond as seems to have been suggested during the cross examination it was not the plea of the appellant. His plea as reflected in the testimony of P.W.2 as informed by the appellant was that the deceased had a high fever the previous night and she died in the morning. Moreover the appellant opted to remain silent when he was examined by the Court under Section 313 It will be very difficult to prove on the part of the Prosecution what actually transpired after the deceased was hit by the appellant and their daughter ran away from the house till the dead body was found on the pond of the house on the next day morning. As the appellant was last seen with the deceased and thus the deceased was literally under the custody of the appellant and the appellant was in a dominating position it was incumbent upon the appellant to give a reasonable explanation in terms of Section 106 of Evidence Act which provides that when any fact is especially within the knowledge of the person the burden of proving that fact is upon him. In this regard one may refer to the decision of the Hon’ble Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra 10 SCC 681 wherein it was held that Page No.# 9 14 “4. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence as noticed above is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.2 All ER 13 — quoted with approval by Arijit Pasayat J. in State of Punjab v. Karnail Singh11 SCC 271 : 2004 SCC135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Illustration appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house the initial burden to establish the case would undoubtedly be upon the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 16. A somewhat similar question was examined by this Court in connection with Sections 167 and 178 A of the Sea Customs Act in Collector of Customs v. D. Bhoormall2 SCC 544 : 1974 SCC784 : AIR 1974 SC 859] and it will be apt to reproduce paras 30 to 32 of the reports which are as under:“30. It cannot be disputed that in proceedings for imposing penalties under clauseof Section 167 to which Section 178 A does not apply the burden of proving that the goods are smuggled goods is on the Department. This is a fundamental rule relating to proof in all criminal or quasi criminal proceedings where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it we must pay due Page No.# 10 14 regard to other kindred principles no less fundamental of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree for in all human affairs absolute certainty is a myth and — as Prof. Brett felicitously puts it—‘all exactness is a fake’. El Dorado of absolute proof being unattainable the law accepts for it probability as a working substitute in this work a day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may on its basis believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man s estimate as to the probabilities of the 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered—to use the words of Lord Mansfield in Blatch v. Archer1 Cowp 63 : 98 ER 969] Cowp at p. 65—‘according to the proof which it was in the power of one side to prove and in the power of the other to have contradicted’. Since it is exceedingly difficult if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in th e special or peculiar knowledge of the persons concerned in it. On the principle underlying Section 106 Evidence Act the burden to establish those facts is cast on the person concerned and if he fails to establish or explain those facts an adverse inference of fact may arise against him which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed out by Best the ‘presumption of innocence is no doubt presumptio juris but every day s practice shows that it may be successfully encountered by the presumption of guilt arising from the recentpossession of stolen property’ though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumptions of fact arising in their favour. However this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may 17. The aforesaid principle has been approved and followed in Balram Prasad emphasis supplied) Page No.# 11 14 Agrawal v. State of Bihar9 SCC 338 : 1997 SCC 612 : AIR 1997 SC 1830] where a married woman had committed suicide on account of ill treatment meted out to her by her husband and in laws on account of demand of dowry and being issueless. 18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of W.B. v. Mir Mohd. Omar8 SCC 382 : 2000 SCC 1516] . In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports:7 SCC 45 that if the accused chooses not to give any explanation or gives a false answer the same can be counted as providing the missing link in the chain of circumstances as follows: “28. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had b een put to him yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer the same can be counted as providing a missing link for building the chain of circumstances. 1 SCC 471 : 2000 SCC 263] .) In the case at hand though a number of circumstances were put to the accused yet he has made a bald denial and did not offer any explanation whatsoever. Thus it is also a circumstance that goes against him.” In this regard we may recollect the law governing circumstantial evidence as recapitulated in Pattu Rajan v. State of T.N. 4 SCC 771 : 2 SCC354 in the following words “31. As mentioned supra the circumstances relied upon by the prosecution should be of a conclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused. Page No.# 12 14 There must be a chain of evidence proving the circumstances so complete so as to not leave any reasonable ground for a conclusion of innocence of the accused. Although it is not necessary for this Court to refer to decisions concerning this legal proposition we prefer to quote the following observations made in Sharad Birdhichand Sarda v. State of Maharashtra9:“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra10 where the observations were made:‘19. … Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions.’ 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty 3) the circumstances should be of a conclusive nature and tendency 4) they should exclude every possible hypothesis except the one to be proved and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles if we may say so constitute the panchsheel of the proof of a case based on circumstantial evidence.” emphasis in original) 4 SCC 116 2 SCC 793 Page No.# 13 14 In the present case the facts are established that there was a quarrel between the appellant and the deceased the previous night and the appellant had assaulted the deceased and hit her with a bottle causing injury on her lip. Thereafter she was found in the pond the next morning within a gap of few hours only and was found dead which has been characterised as death by drowning by the medical evidence. The appellant who was the only person in the house in the night who was in the dominating position vis a vis a battered wife. He instead of explaining the circumstances of her death rather took a false plea that she was suffering from high fever as told to his neighbours that too by concealing the fact that her body was brought from the pond to the house. His son P.W. 1 had testified that he has lifted the body of the deceased from the pond. The fact that the body of the deceased was found lying in the house the next morning by everybody shows that the dead body was removed from the pond to inside the house of which the appellant gave a false and misleading information that the deceased died of fever. Further a feeble attempt was made during cross examination to show that she jumped into the pond as she had a high fever. This failure to provide a cogent explanation rather providing a false explanation certainly provides the missing link to the chain of circumstances leading to the death of the deceased. Since the appellant had physically assaulted the deceased a few hours before her death the propensity of the appellant to do more harm to the deceased is a distinct possibility. There is also the history of frequent quarrel between them and also of beating of his wife by the appellant. The attention of the appellant was drawn to the incriminating facts during his examination by the trial court under Section 313 Cr.P.C. When the appellant was told by the trial court that P.W. 1 Gram Bhumij had stated that the appellant had quarrelled frequently with his wife the appellant denied the same. The appellant also denied that his wife was found dead with the injury on the upper lip. These denials are contradicted by the evidence of other witnesses clearly indicating that the appellant was not truthful in respect of these facts. However he agreed to the statement of PW 1 that upon finding the dead body in the pond he lifted it on the ground. By this the appellant admits that the body of the deceased was removed from the pond to the house. Page No.# 14 14 The appellant also denied the statements of the P.W.3 and P.W.5 that he assaulted her at the time of incident. The appellant also claimed to be ignorant to the statement of the doctor who conducted the post mortem that the deceased died as a result of drowning in water. Thus the appellant was hiding certain facts which only he could have clarified. Under the circumstances in the light of the evidences which have emerged in course of the trial which clearly indicate the guilt of the appellant of an unnatural death which happened within the house of the appellant in the night time and where there is no evidence of the presence of any other person with only a the feeble attempt by the appellant to mislead the neighbourhood that the deceased jumped in the pond because of high fever we are of the view that all the circumstantial evidences which clearly point to his guilt have been established and proved. As regards non production and proof of the bottle with which the deceased was hit as pointed out by the Ld. Counsel for the appellant which according to the appellant throws doubt on the prosecution case we are of the view that it would not materially affect the prosecution case as the injury on the upper lip is proved by medical evidence and testimonial For the reasons discussed above we dismiss this appeal as devoid of merit. Comparing Assistant

Order for refund of court fees on case being settled through the Mediation and Conciliation Centre: The High Court of Delhi

Once the dispute between the parties is amicably arrived at a decision and is settled through the Mediation and Conciliation Centers. The court fees which was earlier charged has to be refunded after such a settlement. The aforementioned has been relied upon by the Delhi High Court while deciding the case of Dr Reddys Laboratories Limited v. Jitendra Goyal Owner and Proprietor of KLG Biotech [CS(COMM) 278/2020 & I.A. 6144/2020], which was decided upon by the single judge bench comprising Justice Suresh Kumar Kait on 16th July 2021. The facts of the case are as follows. Plaintiff had prayed for an order for permanent injunction restraining the defendants, its proprietors, officers, servants, employees, dealers, agents, representatives, distributors and all other persons acting on behalf of defendants from marketing, supplying, selling and offering for sale, advertising directly or indirectly medicinal and pharmaceutical preparations under the trade mark NISE, ULTRA NISE & OMEZA and/or any other trade mark deceptively similar to the plaintiff’s trade mark, which is likely to cause confusion or deception amounting to infringement of the plaintiff’s trade mark and/or passing off its goods and business. A direction was also sought against the defendants to remove all listing of plaintiff’s trade mark NISE, ULTRA NISE & OMEZA made on B2B and B2C websites or portals that may be used by the defendants to promote its products bearing mark ULTRA NISE & OMEZA or any other identical or deceptively similar trade mark. Besides, plaintiff has also sought disclosure by defendant of total sale of products under plaintiff’s trade mark; delivery upon affidavit of defendant to destroy the offending material, products, labels etc in its possession and decree of damages to the tune of Rs.2,00,00,010/-. A report from Mediation and Conciliation Centre of this Court dated 08.04.2021 has been received indicating that the parties have amicably resolved their disputes vide Settlement Agreement. Learned counsel for plaintiff affirms the factum of amicable resolution of dispute with defendant and submitted the terms of settlement.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 16.07.2021 CS(COMM) 278 2020 & I.A. 6144 2020 DR REDDYS LABORATORIES LIMITED Ms. Payal Kalhan Adv. Plaintiff JITENDRA GOYAL OWNER AND PROPRIETOR OF KLG Defendant Through Nemo. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. Plaintiff has prayed for an order for permanent injunction restraining the defendants its proprietors officers servants employees dealers agents representatives distributors and all other persons acting on behalf of defendants from marketing supplying selling and offering for sale advertising directly or indirectly medicinal and pharmaceutical preparations under the trade mark NISE ULTRA NISE & OMEZA and or any other trade mark deceptively similar to the plaintiff’s trade mark which is likely to cause confusion or deception amounting to infringement of the plaintiff’s CS(COMM) 278 2020 trade mark and or passing off its goods and business. A direction is also sought against the defendants to remove all listing of plaintiff’s trade mark NISE ULTRA NISE & OMEZA made on B2B and B2C websites or portals that may be used by the defendants to promote its products bearing mark ULTRA NISE & OMEZA or any other identical or deceptively similar trade mark. Besides plaintiff has also sought disclosure by defendant of total sale of products under plaintiff’s trade mark delivery upon affidavit of defendant to destroy the offending material products labels etc in its possession and decree of damages to the tune of Rs.2 00 00 010 . By order dated 18.09.2020 the present suit was decreed in favour of plaintiff and against defendant No.1 in terms of settlement reached between the two. Further vide order dated 25.02.2021 the matter was referred to Delhi High Court Mediation and Conciliation Centre for exploring settlement between plaintiff and defendants No. 2 & 3. A report from Mediation and Conciliation Centre of this Court dated 08.04.2021 has been received indicating that the parties have amicably resolved their disputes vide Settlement Agreement dated 08.04.2021. Learned counsel for plaintiff affirms the factum of amicable resolution of dispute with defendant and submits that the terms of settlement CS(COMM) 278 2020 have been incorporated in Paragraph 7(a) toof the aforesaid Settlement Agreement dated 08.04.2021. This Court has gone through the terms of settlement incorporated in the Settlement Agreement dated 08.04.2021 and the same are lawful. The present suit is accordingly decreed in terms mentioned in Paragraph 7(a) to of the aforesaid Settlement Agreement dated 08.04.2021. Decree sheet be accordingly drawn. Relying upon decisoin of Hon’ble Supreme Court in Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private Limited 8 SCC 24 a Division Bench of this Court in Nutan Batra Vs. M s. Buniyaad Associates 2018 SCC OnLine Del 12916 had allowed an appeal against the order of refusal of refund of entire court fee in a suit. Further a Coordinate Bench of this Court in Munish Kalra Vs. Kiran Madan and Others 2019 SCC OnLine Del 8021 taking into account the fact that the dispute stands amicably setteld between the parties had relied upon decisions in Afcons Infrastructure Limited and Nutan Batra Supra) and directed refund of the entire court fees. Concurring with afore noted decisions the plaintiff is entitled to refund of entire court fees. Registry is directed to issue necessary certificate CS(COMM) 278 2020 authorization in favour of the plaintiff to seek refund before the appropriate The suit and pending application are accordingly disposed of. JUDGE SURESH KUMAR KAIT) authorities. JULY 16 2021 CS(COMM) 278 2020

The Court is inclined to grant pre-arrest bail to the petitioners held in custody under Sections 363, 366-A, 504/34 IPC: High court of Patna

The petitioner was taken into custody under Section 363 of the India Penal Code, “Punishment for kidnapping”, section 366-A, “Procuration of minor girl”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 34IPC, “Acts done by several persons in furtherance of common intention.” This is in connection with Mansahi PS Case No. 117 of 2019 dated 14.11.2019. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 6th  of August 2021 in the case of Naveen Rishi versus the state of Bihar criminal miscellaneous No.6582 of 2021, Mr. Bimal Kumar, Advocate Represented as the advocate for the petitioner and Mr. Anant Kumar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner along with others was accused of abducting a 13-year-old minor girl, the daughter of the informant to perform the marriage. The counsel for the petitioner held that Rikki Rishi is the co-accused and petitioner no.1 is the brother of petitioner no.2 and 3 who is parents of the co-accused, the co-accused, and the girl married in court out of their own free will and did not involve the family which is the petitioners. This incident took place on 05.11.2019 and Rishi was arrested on 14.11.2019. the minor girl was found in a co-villager’s house and the petitioners have no connection with this man. According to the statement made by the minor girl under section 161, Cr.P.C., 1973 she confessed she had love affairs with the co-accused and left her home on her own accord and marred him in the court, and when she realized she was underage she has returned. In her next statement under section 164 Cr.P.C., she stated that the co-accused had abducted her and married her illegally and she was held in custody in his parents’ (the petitioners) house for two months in Bengal, which is unrealistic because the parents resided in Katihar the entire time. The counsel further held that the co-accused has been granted bail and the allegations are general and omnibus and the petitioners have no other criminal antecedent. The APP held that the petitioners were party to the crime and helped the co-accused in abducting her, however, it was not controverted that the girl has not stated any allegation of misconduct or abuse against the petitioner and only accused the co-accused (Rishi). After considering the facts and circumstances of the case the court held that “ The Court is inclined to allow the prayer for pre-arrest bail. The petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate, PS Case No. 117 of 2019, subject to the conditions laid down in Section 438(2) Cr.P.C., 1973 and further (i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners shall cooperate with the Court and the police/prosecution. Failure to cooperate shall lead to the cancellation of their bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner(s).”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.65821 Arising Out of PS. Case No. 117 Year 2019 Thana MANSAHI District Katihar 1. Naveen Rishi aged about 29 yearsson of Firangi Rishi Firangi Rishi aged about 55 yearsson of Mangan Rishi Fuchani Devi aged about 50 yearswife of Firangi Rishi All resident of village Mushari Tola P.S. Mansahi District Katihar ... Petitioner s The State of Bihar ... Opposite Party s For the Petitioner s For the State Mr. Bimal Kumar Advocate Mr. Anant Kumar APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 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 petitioners on 02.08.2021 which was allowed 3. Heard Mr. Bimal Kumar learned counsel for the petitioners and Mr. Anant Kumar learned Additional Public Prosecutorfor the State 4. The petitioners apprehend arrest in connection with Mansahi PS Case No. 1119 dated 14.11.2019 instituted under Sections 363 366 A 504 34 of the Indian Penal Code Patna High Court CR. MISC. No.65821 dt.06 08 2021 5. The allegation against the petitioners and others is of abducting the 13 years old minor daughter of the informant with intention to perform marriage 6. Learned counsel for the petitioners submitted that the petitioner no. 1 is the brother and petitioners no. 2 and 3 are the parents of Rikki Rishi and the fact is that Rikki Rishi and the girl namely Rabina Kumari had married in Court out of their own free will without any role or involvement of the petitioners. It was submitted that the occurrence is said to have taken place on 05.11.2019 and co accused Rikki Rishi was arrested from his house on 14.11.2019 itself and thereafter the girl has been recovered on 09.01.2020 from the house of one Vishnu Rishi resident of village Bari Didh Pakaria P.S. Hasanganj District Katihar and the petitioners have no connection with the said Vishnu Rishi. It was submitted that in her statement before the police under Section 161 of the Code of Criminal Procedure 1973 hereinafter referred to as the ‘Code’) she has disclosed that she had love affairs with Rikki Rishi and had left her house on her own accord and had married Rikki Rishi in the Court and has further stated that later on she came to know that because of her age she could not have married and has returned. Learned counsel submitted that there is no allegation of any role or complicity of Patna High Court CR. MISC. No.65821 dt.06 08 2021 the petitioners but surprisingly on the next day i.e. 10.01.2020 in her statement before the Court under Section 164 of the Code she has stated that Rikki Rishi had forcibly abducted her and had married and she was kept in the house of his parents in Bengal for two months. Learned counsel submitted that there is no connection of the petitioners in Bengal and thus the allegation itself is unbelievable that they would live in Bengal for two months whereas the fact is that they were living in Katihar all the time. It was submitted that just because after recovery she went to her parents’ place a doctored and tutored version has been stated before the Court by the girl at the behest of the parents guardian Learned counsel submitted that co accused Rikki Rishi has been granted bail by the Court below on 23.06.2020. Further it has been stated that even as per the statement under Section 164 of the Code the allegations levelled are general and omnibus. Moreover the girl has not explained as to how she was recovered from the house of Vishnu Rishi who is resident of village Bari Didh Pakaria P.S. Hasanganj in the district of Katihar when she has alleged that she was kept by the petitioners no. 2 and 3 in Bengal for two months. Learned counsel submitted that the petitioners have no other criminal antecedent Patna High Court CR. MISC. No.65821 dt.06 08 2021 7. Learned APP submitted that the petitioners were also involved in the abduction. However it was not controverted that the girl even in the statement before the Court has not stated that the petitioners were also involved in her abduction or there is any allegation of misconduct or abuse against the petitioners by the girl as she has alleged that it was Rikki Rishi who had abducted her and married her as per the statement under Section 164 of the 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that from the FIR also the allegation made is that the abduction was for the purpose of marriage and the girl has also stated that co accused Rikki Rishi had abducted her and the recovery of the girl being from another person in the district of Katihar and the only allegation being levelled by the girl in her statement under Section 164 of the Code that too after being united with her parents that she was kept in the house of the petitioners no. 2 and 3 in Bengal without any allegation of any maltreatment or abuse the Court is inclined to allow the prayer for pre arrest bail 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be Patna High Court CR. MISC. No.65821 dt.06 08 2021 released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate 6th Katihar in Mansahi PS Case No. 1119 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioners that the petitioners shall cooperate with the Court and the police prosecution. Failure to cooperate shall lead to cancellation of their bail bonds. 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed of in the (Ahsanuddin Amanullah J J. Alam

Both the limbs of Order XXIII Rule 1(3) must be satisfied for withdrawal of suit: Calcutta High Court

Both the limbs of Order XXIII Rule 1(3) must be satisfied for the withdrawal of any suit by the plaintiff. The court can allow a suit to be withdrawn by the plaintiff only if the two conditions mentioned under the provision are fulfilled. This assertion was made by the Calcutta High Court presided by J. Debangsu Basak in the case of Mahesh Properties Pvt Ltd. vs. Partha Pratim Majra & Anr. [IA No. GA 4 of 2020] [Old No. 1709 of 2019] [In CS 265 of 2016]. The executor had applied for grant of probate of the will of Kiran Wadan Bhagat since deceased was one of the sons of Late Lajpat Rai Bhagat who was the sole and absolute owner of 7 bighas of land in Panihati Municipality, Parganas. He had died intestate leaving behind his widow Jagjit Bhagat, three sons The widow of Late Lajpat Rai Bhagat died leaving the three sons and one daughter as his heirs and legal representatives. After the death of Kiran since deceased, his four daughters had executed a registered power of attorney dated June 20, 2005 and appointed their brother Ajay Wadan as their lawful and constituted attorney. Ajay Wadan and Ravi Wadan had transferred one half share of the property to various persons one of whom is the purchaser herein. The father of the executor had filed a suit being before the learned Civil Judge (Junior Division) at Sealdah against the purchasers claiming inter alia for a decree of declaration with the deed of conveyance executed by Ravi Wadan and the daughters of Kiran Wadan is null and void and not binding upon the plaintiff. The father of the executor had claimed that by virtue of a probate granted by the learned District Delegate at Barrackpore District, Parganas of the Will of Ravi Wadan, he is the owner of the suit property. The executor had applied for grant of probate of the Will of Late Kiran which was granted.

IA No. GA 20 Old No. 17019 CS 2616 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side Mahesh Properties Pvt. Ltd. Partha Pratim Majra & Anr. For the Petitioner : Mr. S.N. Mitra Sr. Advocate Mr. Debjit Mukherjee Advocate Mr. Sanjay Mukherjee Advocate Mr. Lal Ratan Mandal Advocate Ms. Susmita Chatterjee Advocate Mr. K. Bhattacharya Advocate For the Respondents Hearing concluded on : Mr. P. Ghosh Advocate : January 19 2021 Judgment on : January 27 2021 DEBANGSU BASAK J. : The executor of the last will and testament of Kiran Wadan Bhagat since deceased has applied for withdrawal of the proceedings being PLA No. 143 of 2016 non prosecution of the same by the executor with the liberty to file afresh before the court of law having jurisdiction to entertain an application for grant of probate of the last will and testament of the deceased dated November 20 2002. Learned Advocate appearing for the executor has submitted that the executor is no longer willing to proceed with the probate proceedings before this Hon’ble Court. He has submitted that there is a probate proceeding pending before the Barasat Court. It is therefore just and proper that the executor be permitted to withdraw the probate application and file a proceeding for probate before the district delegate at Barasat. Learned Senior Advocate appearing on behalf of a purchaser of an immovable property has submitted that his client had purchased the immovable property which is one of the immovable properties referred to in the will by a registered deed of conveyance dated May 5 2002. He has submitted that the executor knew of the right title and interest of the purchaser in the immovable property concerned. The purchaser along with two others had purchased the immovable property by the registered deed of conveyance dated July 5 2005. Nonetheless the executor did not have any citation issued about the proceedings being PLA No. 143 of 2017 to such purchasers. The executor had obtained a probate on July 14 2017 of the will without having the necessary citation issued to the purchasers. The purchasers of upon coming to know about the probate proceeding and the probate granted had filed an application under section 263 of the Indian Succession Act 1925 for revocation of the probate dated July 14 2017. By an order dated June 25 2020 such probate had been revoked. Learned Senior Advocate appearing for the purchaser has submitted that the application for non prosecution is mala fide. This Hon’ble Court does not suffer from lack of jurisdiction to try entertain and determine the application for grant of probate. He has referred to Order XXIII Rule 1 of the Code of Civil Procedure 1908. He has submitted that since the executor has not asked for unconditional leave to withdraw the proceedings the executor is not entitled to have the proceedings withdrawn with the leave as prayed for. In support of his contentions Learned Senior Advocate appearing for the purchaser has relied upon 1910 Calcutta Law Journal 45 2017 Volume 5 Supreme Court Cases 63 V. Rajendran & Anr. v. Annasamy Pandian Through Legal Representatives Karthyayani Natchiar) and 2000 Volume 5 Supreme Court Cases 458 and 1(4) which are as follows: 1. Withdrawal of suit or abandonment of part of claim" 1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 1(3) Where the plaintiff a) abandons any suit or part of claim under sub ruleor b) withdraws from a suit or part of a claim without the permission referred to in sub rule he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject matter or such part of the claim.” 6. The Division Bench in Kharda Co. Ltd. has considered Order 23 Rule 1 of the Code of Civil Procedure 1908 prior to its amendment. It has held as follows: “Rule 1 Sub rule of Order 23 provides that where the Court is satisfied that a suit must fail by reason of some formal defect orthat there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim it may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or abandon such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. It is manifest that Clausesand of Sub rule 2 have to be read together but it is suggested by the learned Vakil for the plaintiff that the terms of Clause are wide enough to entitle the Court to allow the plaintiff to withdraw from the suit under any circumstances that may be deemed sufficient by the Court. We are not prepared to accept this as the true interpretation of the clause. Clausespecifies that a suit may be allowed to be withdrawn if the Court is satisfied that it must fail by reason of some formal defect. Clausethen proceeds to lay down that a similar order may be made for any other sufficient ground. The intention plainly is that a ground included in Clause must be of the same nature as the ground specified in Clausethe Supreme Court has considered Order XXIII Rule 1 of the Code of Civil Procedure 1908 and held as follows: “11. The present Rule which was introduced in place of the old Rule 1 by the Amendment Act of 1976 makes a distinction between absolute withdrawal which termed as “abandonment” and withdrawal with the permission of the court. This clear distinction is maintained throughout in the substituted Rule by making appropriate changes in the wording of various sub rules of Rule 1. 12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit nor can the defendant insist that the plaintiff must be compelled to proceed with the suit and b) a plaintiff may in the circumstances mentioned in sub rulebe permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. 13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non suit. Therefore on principle an application by a plaintiff under sub rule cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub ruleof Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub rulein which two alternatives are provided first where the court is satisfied that a suit must fail by reason of some formal defect and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause of sub rule contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.” The Supreme Court has considered K.S. Bhoopathy in V. Rajendran & Anr.and held as follows : 9 “9. Learned counsel appearing for the plaintiff respondents on the other hand submitted that the High Court heard both the parties before granting the application for withdrawal of the suit with leave to file a fresh suit and therefore no exception can be taken to the order that it was premature. It was the further submission of the learned counsel that Order XXIII Rule 1(3) vests wide discretion in the court to grant permission for withdrawal of the suit with leave to file a fresh suit and such discretion having been exercised by the High Court in favour of the applicants the order is not liable to be interfered by this Court in exercise of jurisdiction under Article 136 of the 9. Order XXIII of the Code of 1908 has dealt with withdrawals and adjustments of suits. As the authorities cited by the parties have noted that there are distinctions between Order XXIII Rule 1(1) and Order XXIII Rule 1(3) of the Code of 1908. Under Order XXIII Rule 1(1) a plaintiff is entitled to abandon his suit or abandon a part of his claim as against the defendant or any of the defendants. However when the plaintiff in a suit seeks leave to withdraw the suit to file afresh on the self same cause of action then Order XXIII Rule 1 comes into operation. Order XXIII Rule 1(3) of the Code 1908 has prescribed that the Court must be satisfied that the suit must be filed by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or a part of the claim. On such satisfaction being returned the Court may grant the plaintiff permission to withdraw such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 10. The executor herein is seeking to withdraw the probate proceedings with liberty to file afresh before any other court. Therefore the present application is governed by Order XXIII Rule 1(3) of the Code of Civil Procedure 1908. 11. The executor had applied for grant of probate of the will of Kiran Wadan Bhagat since deceased. Kiran Wadan Bhagat since deceased was one of the sons of Late Lajpat Rai Bhagat. Late Lajpat Rai Bhagat was the sole and absolute owner of 7 bighas of land lying at Panihati Municipality District North 24 Parganas. Late Lajpat Rai Bhagat had died intestate leaving behind his widow Jagjit Bhagat three sons namely Kiran Wadan Bhagat Ravi Wadan Bhagat and Laj Wadan Bhagat and one daughter Hemi Kapoor. The widow of Late Lajpat Rai Bhagat died leaving the three sons and one daughter as his heirs and legal representatives. Consequently the three sons and the daughter of Late Lajpat Rai Bhagat and Late Jagjit Bhagat each became one fourth owner in respect of the immovable property. The eldest son of Late Lajpat Rai Bhagat namely Kiran Wadan Bhagat died on February 6 2005 leaving him surviving by his son Ajay Bhagat and four daughters Anita Singh Sunita Singh Kabita Sinigh and Debika Dhirani. The wife of Late Kiran Wadan Bhagat had predeceased her husband. After the death of Kiran Wadan Bhagat since deceased his four daughters had executed a registered power of attorney dated June 20 2005 and appointed their brother Ajay Wadan as their lawful and constituted attorney. Ajay Wadan and Ravi Wadan had transferred one half share of the property to various persons one of whom is the purchaser herein. The names of such purchasers had been duly recorded in the Record of rights as well as in the Municipal Register. By a registered deed of conveyance dated December 5 2012 the son of Late Lajpat Rai Bhagat had conveyed his undivided one fourth share in the property in favour of companies all controlled by the purchasers from Ravi Wadan and Ajay Bhagat. The daughter of Late Lajpat Rai Bhagat conveyed her one fourth share on March 15 2013. The purchaser therefore can be said to have an interest in the immovable property. The father of the executor had filed a suit being Title Suit No. 171 of 2016 before the learned Civil Judge 4th Court at Sealdah against the purchasers claiming inter alia for a decree of declaration with the deed of conveyance dated July 5 2005 executed by Ravi Wadan and the daughters of Kiran Wadan is null and void and not binding upon the plaintiff. The father of the executor had claimed that by virtue of a probate granted by the learned District Delegate at Barrackpore District North 24 Parganas of the Will of Ravi Wadan he is the owner of the suit property. The executor had applied for grant of probate of the Will dated November 20 2002 of Late Kiran Wadan Bhagat. This Hon’ble Court had granted probate of such Will on July 14 2007. The purchaser along with other had applied for revocation of such probate by GA No. 3060 of 2017 PLA 143 of 2016 which had been allowed by the judgment and order dated June 25 2020. The facts as narrated hereinabove have been gathered from the judgment and order dated June 25 2020. In the facts of the present case the executor has not claimed that there is any formal defect in the probate proceedings filed by the executor. The application for withdrawal has not specified any ground far less sufficient ground for allowing the executor to institute a fresh suit for the subject matter. In such circumstances since neither of the two limbs of Order XXIII Rule 1(3) of the Code of Civil Procedure 1908 have been satisfied by the executor an unconditional leave to withdraw the proceedings to be filed before any other Court cannot be granted as has been prayed for. In such circumstances the present application being IA GA No. 4 of 2020 in PLA 1416 is dismissed. No order as to costs.

Constitutional Right to Make a Representation arises from Adequate Furnishing of Material Forming Basis of Detention: High Court Of Jammu And Kashmir At Srinagar

Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention, as was considered by the HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR, before a bench consisting of Hon’ble Justice Mr. Sanjay Dhar, in the matter of Ahtisham-Ul-Haq Bhat vs. Government of J&K and Anr. [WP(Crl.) No.35/2021], on 27.01.22. By the medium of instant petition, petitioner has challenged legality and veracity of the detention order dated 03.03.2021, issued by District Magistrate, Bandipora (“Detaining Authority”) whereby Shri Ahtisham ul, resident of Chittaybandy Aragam Tehsil and District Bandipora (“detenu”) has been placed under preventive detention and directed to be lodged in Central Jail, Srinagar. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been furnished to the detenu. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main ground that has prevailed during discussion are that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention have not been supplied to him. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It has been contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit The Court noted that on perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as the said record suggests that whole of the relevant material has not been supplied to the detenue. It was noted that the execution report in the record reveals that the detenue has been supplied only 02 leaves comprising copy of grounds of detention. Thus, it was held that the detenue has not been provided the copy of dossier and the copy of the FIR for the offences u/s 18, 39 of ULA(P) Act of P/S Aragam, which form the basis of the detention order. It was held that this goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously, the petitioner has been hampered by non-supply of the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board. In light of several precedents, the High Court held that non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. It was observed that the cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention was, therefore, held unsustainable. Accordingly, the same was quashed. The detenue was directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 27.12.2021 Pronounced on: 27 .01.2022 WP(Crl.) No.35 2021 AHTISHAM UL HAQ BHAT ...PETITIONER(S) Through: Mr. Syed Musaib Advocate GOVERNMENT OF J&K &ANR. Through: Mr. Hakeem Aman Ali Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE By the medium of instant petition petitioner has challenged legality and veracity of the detention order No.04 DMB PSA of 2021 dated 03.03.2021 issued by District Magistrate Bandipora for brevity “Detaining Authority”) whereby Shri Ahtisham ul Haq Bhat son of Late Gh. Nabi Bhat resident of Chittaybandy Aragam Tehsil and District Bandiporahas been placed under preventive detention and directed to be lodged in Central Jail Srinagar. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind and that the Constitutional and Statutory 2WP(Crl.) No.35 2021 procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been furnished to the. The respondents in their counter affidavit have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure that the grounds of detention were read over to the detenue that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit. I have heard learned counsel for parties and I have also gone through detention record. Learned counsel the petitioner while seeking quashment of the impugned order projected various grounds but the main ground that has prevailed during discussion are that the detenue has been disabled from making an effective 3WP(Crl.) No.35 2021 representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention have not been supplied to him. On perusal of the detention record produced by learned counsel for the respondents the ground regarding non supply of relevant material appears to have substance as the said record suggests that whole of the relevant material has not been supplied to the detenue. The execution report in the record reveals that the detenue has been supplied only 02 leaves comprising copy of grounds of detention. Thus the detenue has not been provided the copy of dossier and the copy of the FIR No.30 2020 for the offences u s 18 39 of ULA(P) Act of P S Aragam which form the basis of the detention order. This goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously the petitioner has been hampered by non supply of the relevant material in making an effective representation against his detention before the concerned authority Advisory Board. Non furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra orsThahira Haris etc. etc. Vs. Government of 4WP(Crl.) No.35 2021 Karnataka & Ors and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others” 3 SCC 440. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention is therefore unsustainable. Accordingly the same is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The record as produced be returned to the learned counsel for the respondents. “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No

No Relief of Further Enquiry Due to Lack of Evidence: Bombay High Court

The allegation made in the writ petition is vague and ambiguous as to the lapses in the investigation. If the petitioner had pointed out something relevant to the case which can be investigated instead of pinpointing some old enmity between the deceased and respondent. This honourable judgement was passed by In the High Court of Judicature at Bombay Bench at Aurangabad in the case of Rajendra @ Raju s/o. Laxman Chandane vs the State of Maharashtra and Others [Criminal Writ Petition NO. 77 OF 2020] by the Hon’ble Ravindra v. Ghuge and B. U. Debadwar. Some boys belonging to Matang community went swimming near the mother of accused Sumit shastri, being annoyed by the kids they ridiculed, insulted after beating them mercilessly. Deceased Vinod Chandane took cognizance of that incident and made publicity of the same up to the national level. Taking cognizance of that incident, brought to light by deceased Vinod Chandane, crime was registered and after trial, Ishwar Joshi, cousin brother of Sumit Shastri was arrested and prosecuted. On 19-03-2019 itself, Vijay Laxman Chandane, younger brother of Vinod Chandane, lodged a report to Pahur police station about the missing of his elder brother Vinod Chandane. After lodging the missing report, Rajendra Chandane lodged FIR at Pahur Police Station inter alia narrating many instances leading to suspicion against Chandrashekhar Wani and others. On the basis of the said report, for the offences punishable under Sections 363, 364, 120- B, 341 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 came to be registered against original accused Nos. 1 to 4 viz. Chandrashekhar Wani, Mahendra Rajput, Namdar Tadvi and Vinod Deshmukh, at Pahur Police Station. Following this, his dead body was found. The court was of the view that “In the absence of prima facie evidence, only on the basis of allegations made in the missing report and the FIR that deceased Vinod Chandane was exposing Chandrashekhar Wani by way of making various complaints to various authorities alleging that he had misappropriated funds allocated to the Gram Panchayat for disbursement of the same to needy persons under various Government schemes, inference cannot be drawn that respondent Nos. 6 to 8 were also party to the conspiracy hatched for the commission of murder of Vinod Chandane. But It is pertinent to note that I.O. gets every right to file a supplementary charge sheet against respondent Nos. 6 to 8, if some evidence establishing their involvement in the crime is found then they can very well be directed to face the trial, by invoking 15 of 16 powers under Section 319 of Cr.P.C.”

on 31 03 2021 on 01 04 CrWP 77 2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 77 OF 2020Rajendra @ Raju s o. Laxman Chandane Age: 30 years Occu. Painting R o. Wakadi Tq. Jamner Dist. Jalgaon. … PetitionerVersus1)The State of Maharashtra Through: Home Secretary Mantralaya Mumbai Maharashtra State.2)Director General of PoliceMaharashtra State.3)Superintendent of Police Jalgaon.4)Sub Divisional Police Officer Pachora Pachora Division Dist. Jalgaon.5)Police Inspector of PahurPolice Station Tq. Jamner Dist. Jalgaon.6)Chandrashekhar s o Padmakar WaniAge : 40 years Occu. Agri.R o. Wakod Tq. Jamner Dist. Jalgaon.7)Vinod s o Suresh Deshmukh Age : 28 Years Occu. Agri.R o Wakod Tq. Jamner Dist. Jalgaon.8)Namdar s o Gulab TadviAge : 35 Years Occu. Agri.R o Wakod Tq. Jamner Dist. Jalgaon.…Respondents 1 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odt…Advocate for Petitioner : Mr. A. L. KanadeAPP for Respondent Nos. 1 to 5 : Mr. S. G. SangleAdvocate for Respondent No.6 : Mr. P. P. More... CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR JJ. RESERVED ON : 18th MARCH 2021 PRONOUNCED ON : 31st MARCH 2021JUDGMENT : 1.By this petition the petitioner has claimed followingreliefs : “B.By issuing appropriate writ order or directions torespondent No. 1 to 3 to re investigate the CrimeNo.74 2019registered at Pahur Police Station on23.03.2019 for the offences punishable U s. 363 364 120 B 341 of I.P.C. r w. Sec. 3(2)(v) of S.C. &S.T. Prevention of Atrocities Act and subsequentlyadded Sec.302 201 of I.P.C. in Charge sheet bearingNo. 19 2019 dated 31.05.2019 filed before Districtand Sessions Judge Jalgaon in resulted into SpecialAtrocity Case No.06 2019 through the CriminalInvestigation Departmentor any other SpecialInvestigation Agency except District Local PoliceMachinery against present respondent No. 6 to 8 whoare the original accused No.1 3 & 4 and also seekingdirection to add the names of respondent No. 6 to 8in the present crime and adding their names maykindly be filed supplementary charge sheet.C.By issuing appropriate writ order or directions torespondents No. 1 to 5 to collect CDR record ofpresent respondent No. 6 to 8 from the date of01.02.2018 to 01.04.2019 in respect of Mobile SimNo. 9112746544 9156906335 and 9860888863 in 2 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtthe connection of present crime as presentrespondent no. 6 i.e. original accused no.1 namelyChandrashekhar Padmakar Wani in several occasioncontacted with accused namely Mahendra ShamlalRajput who committed the murder of deceased VinodChandane with other co accused.D.The order dated 15.6.2019 passed by AdditionalSessions Judge Jalgaon whereby accepted the reportu s. 169 of Cr.P.C. filed by Sub Divisional PoliceOfficer Pachora Pachora Division in the connection ofcrime No. 174 2019 registered at Pahur PoliceStation Tq. Jamner Dist. Jalgaon and therebyreleased present respondent No. 6 to 8 from the saidcrime may kindly be quashed and set aside.”2.Heard Mr. A. L. Kanade learned advocate for petitioner Mr. S. G. Sangle learned APP for respondent Nos. 1 to 5 and Mr. P.P. More learned advocate for respondent No.6. Nobody appearedfor respondent Nos. 7 and 8 despite service of notice.3.Facts of the criminal case which gave rise to this writpetition in nutshell are as under :a)The deceased Vinod Chandane was the elder brother ofpetitioner Rajendra Chandane resident of village Wakadi Tq.Jamner Dist. Jaglaon. They were the members of Matangcommunity which falls in the scheduled castes category. VinodChandane had contested the Gram Panchayat Election as anindependent candidate and elected as a Member of Gram PanchayatWakadi. He used to fight for the protection of rights of poor andneedy persons of village Wakadi with Government Machinery at 3 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtlocal level and if necessary to the State level. b)Accused Sumit Kishor Shastriis also resident ofvillage Wakadi. c)In the year 2018 some boys belonging to Matangcommunity had been to the field standing in the name of mother ofaccused Sumit Shastri for swimming in the well situated in the saidfield. Being annoyed by the same accused Sumit Shastri alongwith his cousin Ishwar Joshi and three more persons resident ofvillage Wakadi caught hold of those boys belonging to Matangcommunity in field itself disgraced and insulted them by movingthem in the village in a naked condition after beating themmercilessly.d)Deceased Vinod Chandane took the cognizance of thatincident and made publicity of the same upto national level. Takingcognizance of that incident brought to light by deceased VinodChandane crime was registered and after trial Ishwar Joshi cousinbrother of Sumit Shastri was arrested and prosecuted.e)Being annoyed by the aforesaid act of Vinod Chandane Sumit Shastri and other prominent persons of the village havingpolitical background decided to take revenge and teach a lesson toVinod Chandane when they would get opportunity. f)On 19 03 2019 at about 09:30 a.m. Vinod Chandanehad left his house with motorcycle. Meanwhile one Ajabsing who 4 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtwanted to go to his field requested Vinod Chandane for lift.Accordingly Vinod Chandane gave lift and carried him up to his fieldand proceeded towards dam.g)On that day at about 02:00 p.m. one Atul Mahajan metAjabsing and informed that he noticed not only motorcycle of theVinod Chandane but also foot wears i.e. chappals and somepapers lying near the dam. Thus Ajabsing was the person whohad lastly seen Vinod Chandane alive. h)On 19 03 2019 itself Vijay Laxman Chandane youngerbrother of Vinod Chandane lodged report to Pahur police stationabout missing of his elder brother Vinod Chandane after visitingand verifying the place near the wall of Wakadi dam wheremotorcycle chappals Adhar Card cell phone and other articlesbelonging to Vinod Chandane were found lying.i)On the basis of the said report missing caseNo.11 2019 was registered at Pahur Police Station at 11:25 p.m.j)After lodging the missing report on 23 03 2019 Rajendra Chandane lodged FIR bearing No.74 2019 at Pahur PoliceStation inter alia narrating many instances leading to suspicionagainst Chandrashekhar Wani and others.k)On the basis of the said report Crime bearing No.74 2019 for the offences punishable under Sections 363 364 120 B 341 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and 5 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtScheduled TribesAct 1989 came to beregistered against original accused Nos. 1 to 4 viz. ChandrashekharWani Mahendra Rajput Namdar Tadvi and Vinod Deshmukh atPahur Police Station.l)After lodging the aforesaid FIR dead body of VinodChandane was found with multiple injuries in the well situatedwithin the limits of village Mohadi.m)During the course of investigation it was revealed thataccused No.2 Mahendra Rajput accused No.5 Pradip @ PintyaPardeshi accused No.6 Yogesh Sonar and accused No.7 SumitShastriout of the rivalry for various reasons referredabove hatched conspiracy and committed murder of VinodChandane by assaulting him with iron rod on his head and thrownhis dead body in the well situated at Wakadi dam.n)This was done by accused No.2 Mahendra accused No.5Pradip and accused No.6 Yogesh at the instance of accused No.7Sumit. o)According to the prosecution accused No.7 Sumit wasthe master mind. He had given the contract of murder of Vinod toaforesaid three accused and in execution of the said contract Vinodwas eliminated by accused No.2 Mahendra accused No.5 Pradipand accused No.6 Yogesh. Therefore they have been charge sheeted for the offences punishable under Sections 302 201 120 6 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtB 341 363 364 of I.P.C. and Section 3(2)(v) of the ScheduledCastes and Scheduled TribesAct 1989and by separate report under Section 169 of Cr.P.C. claimeddischarge of accused No.1 Chandrashekhar Wani accused No.3Vinod Deshmukh and accused No.4 Namdar Tadvi. p)Aforesaid charge sheet and report under Section 169 ofCr.P.C. came to be submitted before the Special Court Jalgaon on31 05 2019.q)In pursuance of the notice in respect of report underSection 169 of Cr.P.C. first informant Rajendra Chandane appearedbefore Special Court and submitted his protest petition Exhibit 24on 14 06 2019 inter alia contending that he had grave suspicionagainst the aforesaid three accused against whom I.O. had claimeddischarge alleging that after investigation no evidence to connectthem with the incident was found. According to RajendraChandane his brother had made various complaints to the variousauthorities against Chandrashekhar Wani in respect ofmisappropriation of funds of Gram Panchayat committed byChandrashekhar Wani by playing fraud. r)That being the reason involvement of ChandrashekharWani Vinod Deshmukh and Namdar Tadvi in the murder of hisbrother Vinod Chandane is sure and certain. s)They are the persons who along with other four 7 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtaccused hatched the conspiracy to eliminate Vinod Chandane andin execution of that plan they ultimately eliminated VinodChandane. t)Chandrashekhar Wani was the main person of theconspiracy under which brutal murder of Vinod was committed.Therefore they are required to be tried along with four accused against whom charge sheet is filed.u)Having heard learned advocates for both the sides learnedJudge of Special Court accepted the report under Section 169 ofCr.P.C. and discharged aforesaid three accused viz. ChandrashekharWani Vinod Deshmukh and Namdar Tadvi holding that afterconducting thorough investigation no incriminating material wasfound against them. In the FIR lodged by Rajendra Chandane onlysuspicion was raised against the aforesaid three accused. Nothingwas placed before I.O. to substantiate the said suspicion.Moreover after investigation it was found that another fouraccusedhave committed themurder of Vinod after hatching conspiracy. Therefore protestpetition is liable to be discarded. v)It is pertinent to note that after about seven months ofacceptance of report under Section 169 of Cr.P.C. RajendraChandane first informant of the case has approached this Courtwith present writ petition claiming various reliefs including relief of 8 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtquashing of the order dated 15 06 2019 passed by AdditionalSessions Judge Jaglaon.4.While taking us through the paper book annexed to thepetition Mr. Kanade vehemently argued that Chandrashekhar Waniis a rich person having strong political background. He hadindulged in misappropriation of funds allocated to the GramPanchayat for disbursing the same to the needy persons undervarious schemes sponsored by the Government. His brother VinodChandane was efficient and loyal member of Gram Panchayat. Hewas deadly against corruption and misappropriation of Governmentmoney. Number of times he had exposed Chandrashekhar Wani.He had made complaints against Chandrashekhar Wani to variousauthorities for the act of his indulging in fraudulentlymisappropriating funds of the Gram Panchayat and thereby causingharm to the downtrodden people for betterment of whom fundswere allotted by the Government. Therefore Chandrashekhar Wanihad grudge against his brother Vinod Chandane. Many timesChandrashekhar had given threats of elimination to his brotherVinod Chandane. This being the motive which is very materialaspect involvement of three accused viz. Chandrashekhar Wani Vinod Deshmukh and Namdar Tadvi in the incident of abductionand murder of his brother Vinod Chandane is sure and certain. 9 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odt5.According to Mr. Kanade investigating officer failed toinvestigate the matter in the light of aforesaid motive. He had nottaken efforts to collect evidence in respect of misappropriation offunds of Gram Panchayat committed by Chandrashekhar Wani.Having regard to the totality of the allegations made in the missingreport and FIR investigating officer ought to have seized cellphones of all the aforesaid three accused and then collect CDR andSDR reports from concerned cellular companies and verify as towhether they were parties to the conspiracy under which VinodChandane was brutally killed. Without collecting appropriatedocumentary evidence and other evidence I.O. has submitted falsereport of discharge and learned Special Court has wrongly acceptedthe same without considering the protest petition submitted byRajendra Chandane. Therefore it is just and necessary to set asidethe order dated 15 06 2019 passed by the Special Court Jalgaon by which respondent Nos. 6 to 8 who are the original accused Nos.1 3 and 4 viz. Chandrashekhar Wani Vinod Deshmukh and NamdarTadvi have been discharged by accepting report under Section 169of Cr.P.C. and direct respondent Nos. 1 to 5 to re investigate thematter collect the additional evidence in the light of avermentsmade in the missing report and FIR including CDR and SDR reportsof cell phones of aforesaid three accused and file supplementary 10 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtcharge sheet against the said accused.6.Per contra Mr. P. P. More learned advocaterepresenting respondent No.6 strenuously argued that the petitionis baseless and misconceived. I.O. has investigated the matterthoroughly having regard to the allegations made in missing reportand FIR. After investigation no prima facie evidence showinginvolvement of respondent Nos. 6 to 8 found in the crime.Therefore he had no other option than to submit the report underSection 169 of Cr.P.C. against them.7.Rajendra Chandane first informant had not submittedany evidence to substantiate his suspicion. During the course ofinvestigation number of witnesses came to be examined butnobody made any kind of incriminating statement againstrespondent Nos. 6 to 8. In the absence of prima facie evidence only on the basis of baseless suspicion raised in the FIR respondentNos. 6 to 8 cannot be dragged to face the trial. The I.O. had noreason to act hand in glove with respondent Nos. 6 to 8. Had thepolice hand in glove with respondent Nos. 6 to 8 they would nothave arrested respondent Nos. 6 to 8 and sought their policecustody. In spite of doing in depth investigation nothing was foundagainst them. Now case is reached to the stage of framing charge.After commencement of trial if any incriminating evidence comes 11 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odton record against respondent Nos. 6 to 8 or in the meantime I.O.comes across any cogent evidence then respondent Nos. 6 to 8 canbe again prosecuted by filing supplementary charge sheet but atthis juncture only on the basis of vague suspicion raised byRajendra Chandane none of the reliefs as prayed by him can begranted. Therefore writ petition is liable to be dismissed.8.Mr. Sangle learned APP adopted aforesaid argumentsadvanced by Mr. More and additionally argued that cell phones ofaccused Nos. 2 5 6 and 7 were seized CDR and SDR reports ofthe same were collected from cellular companies of those cellphones and after cross verifying the said CDR and SDR reports involvement of those four accused were found. However noinvolvement of respondent Nos. 6 to 8 was found. Therefore thereis no substance in saying that I.O. did not investigate the matterproperly in respect of respondent Nos. 6 to 8.9.In the light of aforesaid submissions we have carefullygone through the record in it’s entirety. It is pertinent to note thatthe petitioner is claiming prosecution of respondent Nos. 6 to 8 only on the basis of suspicion. In the absence of prima facieevidence only on the basis of allegations made in the missingreport and the FIR that deceased Vinod Chandane was exposingChandrashekhar Wani by way of making various complaints to 12 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtvarious authorities alleging that he had misappropriated fundsallocated to the Gram Panchayat for disbursement of the same toneedy persons under various Government schemes inferencecannot be drawn that respondent Nos. 6 to 8 were also party to theconspiracy hatched for commission of murder of Vinod Chandane.10.It is a matter of record that during course ofinvestigation neither Rajendra Chandane had submitted anydocumentary evidence nor I.O. has come across cogent evidence on the basis of which it can be gathered that respondent Nos. 6 to 8were also parties to the conspiracy under which murder of Vinodwas committed.11.When there is no evidence showing that respondentsNo. 6 to 8 were parties to the conspiracy hatched for commission ofcrime i.e. murder of Vinod Chandane report under Section 169 ofCr.P.C. submitted by the I.O. vis a vis order passed by the learnedSpecial Court accepting the said report cannot be said to beincorrect.12.Having regard to the date of submission of report underSection 169 of Cr.P.C. date of the incident date of arrest ofrespondent Nos. 6 to 8 and the date of filing of present writpetition as on today even if by accepting allegations made in the 13 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtFIR directions are given for obtaining CDR and SDR report from theconcerned cellular companies of cell phones of respondent Nos. 6 to8 which were seized from them immediately after their arrest thenalso no purpose would be served as after one year call details ofevery cell phone gets deleted from the data storage of server ofconcerned cellular company. From this angle also relief pertainingto giving direction to respondent Nos. 1 to 5 as prayed in prayerclause ‘C’ of the petition becomes redundant.13.Since the averments made in the writ petition arevague as to the lapses in the investigation relief of directingrespondent Nos. 1 to 5 for conducting further investigation cannotbe granted. Had the petitioner pinpointed particular aspect of thecase left uninvestigated then further investigation in respect of thataspect could have been directed. Instead of pinpointing what is leftto be investigated petitioner went on harping on previous enmityand insisting for re joining respondent Nos. 6 to 8 in the criminalcase only on the basis of the same when there is no evidence oftheir participation in the conspiracy hatched by the rest of theaccused who have been charge sheeted.14.Record reveals that after receiving the complaint madeby deceased Vinod Chandane in charge officer of Pahur PoliceStation had summoned him so as to verify the contents of the 14 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtcomplaint and proceed further. But in spite of calling him time andagain deceased Vinod did not approach Pahur Police Station inconnection with the complaint he had made against accusedChandrashekhar Wani. This conduct of the deceased cannot be lostsight of.15.On the basis of CDR and SDR reports nexus of accusedNos. 2 5 6 and 7 with the homicidal death of Vinod Chandaneestablished and hence they have been rightly charge sheeted.CDR and SDR reports do not reveal about calling by respondentNos. 6 to 8 to any of the charge sheeted accused or receiving callsfrom them in relevant period. So also nobody from the witnessesspoke that they saw respondent Nos. 6 to 8 in the company ofdeceased Vinod Chandane prior to his disappearance. Therefore from any angle discharge of respondent Nos. 6 to 8 cannot said tobe incorrect.16.It is pertinent to note that I.O. gets every right to filesupplementary charge sheet against respondent Nos. 6 to 8 ifsome evidence establishing their involvement in the crime is found.Therefore if the I.O. comes across such evidence or during thecourse of evidence something comes on record prima facieestablishing involvement of respondent Nos. 6 to 8 in the incident then they can very well be directed to face the trial by invoking 15 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtpowers under Section 319 of Cr.P.C. But in any case at thisjuncture either relief of re investigation or giving direction to policefor calling CDR and SDR reports of cell phones of respondent Nos. 6to 8 and verifying the same or quashing the order accepting thereport under Section 169 of Cr.P.C. passed by the Special Court Jalgaon can not be granted.17.In view of the above writ petition being devoid ofmerits is dismissed. (RAVINDRA V. GHUGE J.)SVH 16 of 16

Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair: Tripura High Court

If there is a prolonged time of continual separation, the matrimonial relationship is fairly irreparable. Marriage is a lie but backed by a civil relationship. In such circumstances the statute does not serve the sanctity of marriage by refusing to break this bond; instead, it has no respect for the feelings and sentiments of the parties. It can lead to mental cruelty in such circumstances. The judgement was passed by the High Court of Tripura in the case of Swapna Sinha v. Bimal Sinha [Mat. Appl. No. 21 of 2019] by Single Bench consisting of Hon’ble Justice MR. S.G.Chattopadhyay. The respondent filed a petition in the court of District Judge, under Section 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 against the appellant praying for dissolution of their marriage by a decree of divorce on the ground of cruelty and desertion. The learned District Judge declined to grant a decree of divorce in the suit. He passed a decree for judicial separation in the exercise of his power under Section 13A of the Act of 1955. The aggrieved wife has, therefore, preferred this appeal under Section 28 of the Act of 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned judgment passed by the learned District Judge. Learned counsel for the appellant has vehemently argued that the facts and circumstances of the case would clearly show that the husband was at fault who had always tortured the wife and ultimately deserted her in a hapless condition. According to learned counsel, the husband could not adduce any evidence concerning desertion and cruelty against his wife in the trial court. But the learned trial court without an appreciation of evidence decreed the suit for judicial separation relying on the unsubstantiated evidence of the husband. As a result, the decree of judicial separation granted by the learned trial court is liable to be set aside in this appeal. Learned counsel for the respondent has argued that the relationship between the appellant wife and her respondent has broken down and there seems to be no chance of retrieval at all. According to learned counsel it has been proved before the trial court that the appellant wife subjected her husband to enormous mental cruelty and ultimately deserted him without any genuine reason and even thereafter, she brought unfounded allegations against him and his mother which were proved to be false in the trial court. According, to learned counsel, the trial court rightly passed the decree of judicial separation which does not deserve any interference in appeal. Keeping reliance upon apex court judgment Samar Ghosh Vs. Jaya Ghosh, it was noted that “Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

HIGH COURT OF TRIPURA Mat. Appl. No. 219 B E F O R E HON’BLE MR. JUSTICE S.TALAPATRA HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY Smt. Swapna Sinha Daughter of Shri Chandra Badhan Sinha Rajbari: Mandappara Sub division :Dharmanagar District: North Tripura Shri Bimal Sinha Son of late Bhagya Sinha Sub division: Kailashahar District : Unakoti Tripura . ….Respondent(s). Ms. A.Debbarma Adv. For Appellant(s) Mr. D.C.Saha Adv. For Respondent(s) Date of hearing Date of Pronouncement : 05.02.2021 Whether fit for reporting Yes No  JUDGMENT Per S.G.Chattopadhyay J] This appeal is directed against judgment dated 05.01.2019 delivered by the District Judge North Tripura Judicial District Dharmanagar in Case No. T.S. 53 of 2017. The respondent ‘husband’ hereunder) filed a petition in the court of District Judge North Tripura Dharmanagar under Section 13(1)(i a) & of the Hindu Marriage Act 1955(‘the Act of 1955’ hereunder) against the appellant praying for dissolution of their marriage by a decree of divorce on the ground of cruelty and desertion. The learned District Judge declined to grant decree of divorce in the suit. Instead judgment dated 05.01.2019 delivered by him in case no T.S.(Divorce) 517 he passed a decree for judicial separation in exercise of his power under Section 13A of the Act of 1955. The aggrieved wife has therefore preferred this appeal under Section 28 of the Act of 1955 read with Section 19 of the Family Courts Act 1984 challenging the legality of the impugned judgment passed by the learned District Judge Dharmanagar North Tripura. The undisputed facts are that both the husband and wife are Hindus and governed by the provisions of the Act of 1955. Their marriage was solemnized on 13.09.1993 as per Hindu rites and customs and a daughter and a son were born to them within their wed lock. In the divorce proceedings the husband brought several allegations of cruelty against his wife. According to him they had love affairs which matured into their marriage. Since their family members did not accept their relationship the marriage was solemnized in a temple called ‘Mahadev Mandir’ at Damcherra. After marriage they started together in the ancestral house of the husband at Damcherra where the husband was posted as a Panchayet Secretary in Dasda R.D.Block at that time. Within a few years a daughter and a son were born to them. It was alleged by the husband that his wife could not tolerate his mother. She was always willing to live away from his mother and constantly pursuing her husband to take a house on rent elsewhere so that they could stay away from her mother in law. Since the husband did not agree to her proposal she started ill treating his mother. She stopped cooking at home and started quarrelling with her husband on trivial issues. Even during midnight she used to quarrel with her husband loudly. The irritated neighbours started agitating against them. As a result the husband took a house on rent at Rajbari Dharmanagar and started residing there with his wife and children. Gradually their relationship worsened and he parted with the company of his wife and started living separately at Kirtantali Kailashahar in Unakoti. Having found no possibility of restoration of their conjugal life the husband filed the petition in the Court of the District Judge seeking divorce on the ground of cruelty and The wife contested the petition and refuted the allegations made against her by her husband. She brought counter allegations against her husband. According to her all allegations brought by her husband were false and baseless. She alleged that her husband deserted her and her two children in a hapless condition in March 2017 and he never came back. It was also alleged by the wife that after marriage when she started living with her husband at Damcherra her husband and her mother in law subjected her to harassment for dowry. Her husband demanded Rs.1 00 000 in cash and for the fulfilment of his demand he used to commit physical torture upon her in intoxicated condition. Her mother in law always supported him. Few years after their marriage a daughter and a son were born to them which brought no change in the conduct of her husband. He continued torturing her almost in every night. In March 2006 they shifted to Rajbari Dharmanagar where her husband had initially taken a house on rent. Thereafter they bought a house at Dharmanagar where they lived for about 11 years. At the night on 08th March 2017 the husband returned home in drunken condition and brutally assaulted her. Following their cry their neighbours appeared and rescued her. Immediately thereafter her husband left home and he never returned thereafter. According to the wife she always tried to live a happy conjugal life with her husband. But there was no response from his side. Rather he always treated her with cruelty and ultimately deserted her and her children. Denying the allegations of cruelty and desertion brought against her by her husband she urged for dismissal of the petition of her husband. The learned trial court on the basis of the aforesaid pleadings of the parties following issues in the Suit: i)Whether the marriage between the parties was solemnized in accordance with the Hindu rites and customs at Damcherra Mahadev ii)Whether the husband is entitled to a decree of divorce on the ground of cruelty and desertion iii)What other relief relieves the parties are entitled to To prove his case the husband adduced the evidence of himself and 2 other witnesses. The witnesses who were examined by him are as follows: i) PW 1 Shri Bimal Sinha the husband. ii) PW 2 Sri Manikanta Sinha who is a neighbour of the husband. iii) PW 3 Shri Khelendra Rajkumar who is also a neighbour of the husband. The wife on the other hand adduced the evidence of herself and 2 other witnesses. The witnesses adduced on her behalf were as follows: i) DW 1 Smt. Swapna Sinha the wife herself. ii)DW 2 Sri Gopisena Sinha who is a neighbour of the parties. iii) DW 3 Smt. Maya Ghosh who is also a neighbour of the parties. The trial court considered the matter in great detail in the given factual background and on appreciation of the evidence available on record the trial court having applied the test of preponderance of probability came to the conclusion that the case of the husband was more probable than the case of the wife. But having considered the fact that the wife was still willing to live with her husband along with the children and they were living separately only for a period of 1 and ½ years prior to the institution of the suit and the relationship was not broken down completely the learned District Judge instead of granting divorce decreed the suit for judicial separation. Relevant extract of the findings of the learned District Judge is as under: “17. On due evaluation the evidence of respondent her evidence immediate after five months of marriage the petitioner used to return home at late night being intoxicated and used to torture her on demand of cash money is not believable only on the simple ground that had the petitioner regularly and continuously tortured her on demand of cash money then at least a single complaint to any authority would have in the case of the been made but respondent wife no such complaint was made anywhere. The evidence of the further cannot be respondent wife believable for that had the petitioner husband used to torture his minor daughter and son then she could have produce those son and daughter before the court to depose the same but she has not done the same. 18. Be that wha tit may the petitioner’s respondent failed to rebut the evidence of the petitioner. Section 13(1)(i a) of the Act clearly specifies the cruelty as a ground of divorce and the petitioner husband has proved that the respondent wife treated him with cruelty since after marriage. Now question arises whether in the facts and circumstances of the case decree of judicial separation will suffice instead of granting decree of divorce. What I notice is that though the respondent treated him with cruelty but the respondent wife is still willing to live with him peacefully along with their separately only for about 1 and ½ years due to sudden quarrel. Therefore it can be said that the marriage has not been broken down beyond repair or hope of salvage. There is still hope to repair the marital tie of the parties. Therefore the factual situation in the case justifies the grant of judicial separation instead of granting of divorce on the ground of cruelty. Judicial separation will serve the purpose in the facts and circumstances of the case. 19. In view of the decision held above it is decreed that the petitioner husband and the respondent wife shall separately judicially. It is no obligatory for the petitioner husband to cohabit with the respondent wife.“ representing the parties at length. Ms. A.Debbarma learned advocate appearing the wife has vehemently argued that the facts and circumstances of the case would clearly show that the husband was at fault who had always tortured the wife and ultimately deserted her in a hapless condition. According to Ms. A.Debbarma learned counsel of the wife the husband could not adduce any evidence with regard to desertion and cruelty against his wife in the trial court. But the learned trial court without appreciation of evidence decreed the suit for judicial separation relying on the unsubstantiated evidence of the husband. As a result the decree of judicial separation granted by the learned trial court is liable to be set aside in this appeal. 10] Mr. D.C.Saha learned counsel appearing on behalf of the respondent husband has argued that the relationship between the appellant wife and her respondent husband has totally broken down and there seems to be no chance of retrieval at all. According to learned counsel it has been proved before the trial court that the appellant wife subjected her husband to enormous mental cruelty and ultimately deserted him without any genuine reason and even thereafter she brought unfounded allegations against him and his mother which were proved to be false in the trial court. According to Mr. Saha learned counsel the trial court rightly passed the decree of judicial separation which does not deserve any interference in appeal. 11] As noted by us the husband has not denied the marriage and paternity of the children. He sought for a decree of divorce on the ground of cruelty and desertion and tried to establish a case that right from the beginning of their marriage his wife ill treated him and his mother and at one point of time she became so violent that the husband had to change his residence from Damcherra to Dharmanagar from where they were separated in March 2017. Due to the unendurable conduct of his wife the husband started living away from his wife and children at Kirtantali Kailashahar in Unakoti. A relook into the evidence adduced by the husband is necessary to test the veracity of his claim. 12] In his examination in chief on affidavit the husband had recapitulated his plaint case. According to him his wife treated him and his mother with cruelty right from the beginning of their marriage. As a result of which the conjugal relationship between them deteriorated which resulted in their separation in March 2017. In his cross examination he denied the suggestion of his wife that his wife never misbehaved with him or his mother. He also denied her suggestion that in fact he tortured her for dowry and ultimately deserted her. 13] Shri Manikanta Sinha who deposed in the trial court as PW 2 supported the case of the husband in his examination in chief on affidavit. He told the trial court that the wife used to quarrel with her husband even during midnight. As a result of which her husband had to leave Damcherra and take a house on rent at Rajbari in Dharmanagar. The wife did not even cook food for her husband and mother in law while she was at Damcherra. In his cross examination he denied the suggestion of the wife that he was paid for giving false evidence in favour of the husband. 14] PW 3 Shri Khelendra Rajkumar neighbour of the spouses also supported the case of the husband and told the trial court that the wife was not willing to live with her mother in law and on this issue she used to quarrel with her husband regularly. The PW saw the husband preparing food for the family on many occasions because his wife refused to cook food. Even after the spouses started living at Rajbari in Dharmanagar the wife continued quarrelling with her husband. In his cross examination the PW denied to have given false evidence in favour of the husband. He also denied all other suggestions which were put to him by the wife during his cross examination. 15] The wife on the other hand apart from denying the case of her husband brought counter allegations against him in the District Court. According to her the husband was wholly responsible for termination of their relationship. It was stated by the wife that her husband was an alcoholic who used to torture her almost in every night in drunken condition for fulfilment of his demand of dowry. She was also physically assaulted by her husband on several occasions and ultimately on 8th March 2017 her husband deserted her when she was living at Rajbari in Dharmanagar. In her cross examination she denied the suggestion of her husband that she ill treated him and his mother. She also denied his suggestion that she gave false evidence against him in the trial court. 16] Her witness Gopisena Sinha DW 2 supported her case in his examination in chief on affidavit wherein the DW stated that he witnessed the husband physically assaulting his wife and on 8th March 2017 he met the wife at her house in Dharmanagar when she told the DW that her husband left the house after assaulting her in drunken In his cross examination DW 2 denied to have any relationship with the wife. He denied the suggestion of the husband that he never visited her rented house at Dharmanagar and he never witnessed any incidence between the husband and wife. 17] DW 3 Smt. Maya Ghosh stated in her examinationin chief on affidavit that in 2006 the husband and wife along with their children had taken the house of Dibakar Sinha in Dharmanagar on rent and thereafter they purchased their own house. During their stay in the rented house the husband used to assault his wife physically in intoxicated condition almost in every night. At the night in March 2017 the DW along with other neighbours visited their house and saw the husband beating the wife. Seeing the neighbours he left the house bag and baggage. In cross examination it was suggested to the witness that the alleged incidence of physical torture of the wife was not true and she did not witness such incidence. She denied the suggestion. 18] The trial court seems to have believed the case of the husband that his wife treated him with cruelty after marriage and ultimately deserted him. Having recorded his finding that the husband proved the grounds of divorce by adducing evidence the learned trial court instead of granting decree of divorce to the husband decreed the suit for judicial separation under Section 13A of the Act of 1955 because the court believed that the marriage did not break down completely. 19] The husband filed the petition for divorce in the Court of the District Judge on 13.11.2017. In paragraph 19 of his petition he stated that he started living separately from his wife from the month of March 2017. Therefore even if for argument’s sake it is conceived that the wife deserted the husband in March 2017 the ground of desertion as contemplated under Section 13(1)(i b) was not lawfully available to the husband because the husband could not prove that his wife deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the divorce petition. As such the requirement of Section 13(1)(i b) of the Act of 1955 was not fulfilled and the ground of desertion as envisaged under Section 13(1)(i b) of the Act of 1955 was not available to the husband. 20] With regard to the allegation of cruelty it has surfaced from the record that the parties are blaming each other termination of relationship. Case of the husband is that his wife always ill treated him and his mother and ultimately compelled him to part with her company. The wife brought counter allegations against her husband and alleged that he was a torturous husband who used to assault her almost in every night in intoxicated condition and ultimately deserted her and their children. Both of them adduced evidence in support of their respective cases. 21] As noticed by us the spouses brought allegations and counter allegations against each other. While taking note of cruelty trial court proceeded on the basis of preponderance of probability and held that husband’s case with regard to cruelty was more probable than his wife’s case. The view taken by the trial court was not correct because it escaped the notice of the learned trial judge that the wife brought graver charges of cruelty against her husband which was supported by eye witnesses. The wife alleged that she was physically assaulted by her drunken husband which was supported by DW 3 who happened to be in her house during the occurrence of one of such incidents. Apparently learned trial Judge did not weigh her evidence in the same scale in which he weighed the evidence of the husband. 22] Cruelty for the purpose of divorce is not defined. Section 13(1)(i a) of the Act of 1955 under which ‘cruelty’ is made a ground of divorce simply states that a marriage solemnized may be dissolved by a decree of divorce on a petition presented by either the husband or the wife on the ground that the other party “(1)........ has after the solemnization of the marriage treated the petitioner with cruelty or.........” 23] The Apex Court in a catena of decisions has discussed as to what amounts to cruelty for the purpose of divorce. In the case of V. Bhagat Vs. D. Bhagat Mrs.) reported in 1 SCC 337 the Apex Court has succinctly held that cruelty for the purpose of matrimonial proceedings the matter to be determined in each case having regard to the facts and circumstances of that case. Observations of the Apex Court vide paragraph 16 of the judgment is as “16. Mental cruelty in Section 13(1)(i a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at conclusion regard must be had to the social status educational level of the parties the society they move in the possibility or otherwise of the parties ever living together in case they are living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty another case. It is a matter to be Determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made.” 24] Similar view was taken by the Apex Court in a later decision in Vinita Saxena Vs. Pankaj Pandit reported in 3 SCC 778 wherein the Apex Court has held as under: “35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection the culture temperament and status in life and many other things are the factors which have to be 25] In the case of Vinita Saxena the Apex Court with regard to cruelty further held that it must be proved that one partner in the marriage mindless of the consequence has behaved in a way which the other spouse could not in the circumstances be called upon to endure and that misconduct has caused to the other party injury to health or a reasonable apprehension of such injury. 26] In Mayadevi Vs. Jagdish Prasad reported in 3 SCC 136 the Apex Court having relied on the decision of Shobha Rani Vs. Madhukar Reddi 1 SCC 105 held that to constitute cruelty the conduct complaint should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse and such conduct must be something more serious than “ordinary wear and tear of married life”. 27] In Samar Ghosh Vs. Jaya Ghosh reported in 2007) 4 SCC 511 the Apex Court after scrutiny and analysis of its earlier judgments on this issue came to comprehensive definition of the concept of mental cruelty within which all kinds of cases of mental cruelty can be covered. The Apex Court vide paragraph 101 of the judgment held that no uniform standard can be laid down for guidance and after holding such view the Hon’ble Apex Court enumerated some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty which are as under: “101............ The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: i) On consideration of complete matrimonial life of the parties acute mental pain agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental ii) On comprehensive appraisal of the entire matrimonial life of the parties it situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. iii) Mere coldness or lack of affection cannot amount to cruelty frequent rudeness of language petulance of manner indifference and neglect may reach such a degree that it makes the for the other spouse absolutely intolerable. iv) Mental cruelty is a state of mind. anguish disappointment in one spouse caused by the conduct of other for a long time may lead to mental v) A sustained course of abusive and torture miserable life of the spouse. treatment calculated vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The complained of and the resultant danger or apprehension must be very grave substantial and weighty. vii) Sustained reprehensible conduct studied neglect indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental viii) The conduct must be much more selfishness jealousy possessiveness unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. ix) Mere trivial irritations quarrels normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse it extremely wronged party difficult to live with the other party any longer may amount to mental cruelty. reasons and without xi) If a husband submits himself for an sterilization without consent or knowledge of his wife and the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband such an act of the spouse may lead to mental xii) Unilateral decision of refusal to period without there being any physical incapacity or valid reason may amount to mental cruelty. xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. xiv) Where there has been a long period of continuous separation it may matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases the sanctity of does not serve marriage on the contrary it shows scant regard feelings and for the emotions of the parties. In such like situations lead to mental it may Having applied the tests laid down by the Apex Court in the judgments cited to supra we are of the view that the allegations proved by the husband against his wife fall within “ordinary wear and tear of married life.” The learned trial court should have appreciated the fact that marriage between the parties had taken place in 1993 and they lived together in the marital tie for more than 24 years despite their discord and differences and brought up their children together who have by this time attained adulthood. Their relationship would have come to end long back unless they condoned the conduct of each other. 29] In view of the tests laid down by the Apex Court in the judgments cited above conduct of the wife as attributed to her by her husband cannot be considered as cruelty for the purpose of divorce. The incidents pointed out by the husband can only be considered as misunderstanding between the parties and as such we are of the considered view that the husband has failed to make out any ground of divorce in the case. 30] It is a settled proposition of law that only when ground of divorce is made out the court may at its discretion grant decree of judicial separation under Section 13A of the Act of 1955 instead of granting 31] As discussed above the husband failed to establish either of the grounds of desertion or cruelty against his wife in the trial court. As such he was not entitled either to a decree of divorce or judicial separation. Since the learned District Judge observed that the relationship between the spouses did not dry up and there was chance of renewal of their relationship he should not have suspended their relationship by granting decree of judicial separation. 32] Resultantly the impugned judgment is set aside and the appeal is allowed. Send back the LCR. JUDGE Saikat Sarma PA

Police Can’t Question Prosecutrix/Victim Regarding Variations In Statements Given U/S 161 & 164 Of CrPC: Allahabad High Court

Putting questions to the prosecutrix/victim with regards to the change in version by her in the statements under Section 161 of the CrPC and in the statement under Section 164 of the CrPC, clearly shows disrespect to the courts who have recorded the statements under Section 164 of the Code as held by the Hon’ble High Court of Allahabad through a learned bench of Justice Samit Gopal in Dharmendra Vs State of U.P [CRIMINAL MISC. BAIL APPLICATION No. – 31695 Of 2021] with CRIMINAL MISC. BAIL APPLICATION No. – 20006 Of 2021 and CRIMINAL MISC. BAIL APPLICATION No. – 30288 Of 2021. The brief facts of the case are that the Court was hearing three bail applications, argued on a particular issue common in all of them, however, the Court did not go into the merits of the cases, and rather dealt with a specific question, which is as follows: “Whether the Investigating Officer of a case, can, after recording the statement of a prosecutrix/victim once under Section 161 of CrPC who has supported the prosecution case and then in her statement recorded under Section 164 of the Code recorded before a Magistrate has given a different version and more particularly does not state about any wrongful act being committed on her as has been recorded in her statement under Section 161 of the Code earlier, can again interrogate the prosecutrix/victim under Section 161 of the Code and put specific questions to her pertaining to the two different versions given by her in the said two statements and then record the statements and proceed with the Investigation further?” Essentially, the Court was concerned with the question as to whether a police officer can question/interrogate a rape victim again, who first supported the case of prosecution alleging rape in her statement recorded under 161 CrPC, but later on, gives a different version and more particularly does not state about any wrongful act being committed in her statement recorded under Section 164 of the Code before the Magistrate. In conclusion, while observing that under Section 164 of CrPC, the statement of a victim is recorded by Judicial Magistrates in the discharge of their judicial functions and therefore, the act of the Investigating Officer putting a question to the victim as to why she gave out a different version before the magistrate (in comparison to her statement under 161) is not appreciable. The court stated that “By putting questions to the prosecutrix/victim in her second statement under Section 161 of the Code after recording of the statement under Section 164 of the Code relating to the different versions in the said two statements, the Investigating Officer cannot frustrate the same and also make an attempt to make the purpose of the said exercise look a farce…The act of putting specific questions pertaining to the variations in the said two statements by the Investigating Officer is viewed with an impression of clearly challenging the authority of a judicial act. The Investigating Officers have clearly exceeded their jurisdiction by proceedings to investigate in such a manner. The same appears to be with a sole purpose to frustrate the statements recorded by a Magistrate.” Lastly, the Court directed the DGP to issue necessary guidelines within a period of one month and also asked the state counsels and registry to submit a compliance report within one week thereafter.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Arb App No. 01 2021 CM No. 6039 2021 Serial No. 02 Supplementary 1 List Adil Ashraf Bolaki Dated: 28th of September 2021. … Appellant(s) Mr Aatir Javed Kawoosa Advocate with Mr Musharraff W. Baba Advocate. JK Power Transmission Corporation Limited & Ors. … Respondent(s) Through: Mr Jahangir Iqbal Ganai Senior Advocate with Ms Humaira Shafi Advocate and Mr Hakeem Aman Ali Dy. AG. Per Magrey J: Oral Hon’ble Mr Justice Ali Mohammad Magrey Judge. Hon’ble Mr Justice Sanjeev Kumar Judge. This is an appeal filed by the Appellant under Section 37 of the Arbitration & Conciliation Act 1996against the Judgment dated 1st of September 2021 passed by the learned Single Bench in AA No. 07 2021 filed by the Appellant in terms whereof the Application filed by the Appellant stands dismissed. The brief facts leading to the filing of this Appeal as come to limelight from the perusal of the pleadings on record are that the Appellant Arb App No. 01 2021 CM No. 6039 2021 claims to have been accorded contract for installation of 132 KV Cable laying job for the Jammu and Kashmir Power Transmission Corporation LimitedSrinagar at Tengpora GIS Substation vide letter No. EHV 373 JKPTCL 20 21 11 dated 10th of September 2020 whereafter he started execution of work strictly in terms of said letter and terms and conditions of the contract and that the same is being carried out by him without any failure on his part. It is stated that as per serial No.40 to Annexure A to the abovementioned communication contract allotted in favour of the Appellant he was required to supply and install 400 Mts of Copper Cable for Road Crossing through HDPE pipes including supply of HDPE pipes in trenchless digging and restoration as per specifications. It is also stated that during execution of work contract it came to surface that road crossing through HDPE pipes could not be completed within prescribed quantity i.e. 400 Mts. and that the Appellant informed the Respondents about the same and accordingly the Respondents visited the work site and after inspection that work could not be completed within the given measurements quantity i.e. 400 Mts and thus they orally directed the Appellant to install extra cables and HDPE pipes required for completion of job. It is claimed by the Appellant that the Respondents assured the Appellant that work contract would be amended and he would be paid for extra work and expenses incurred and increase would be added in final bill strictly in lieu of rate fixed. It is also stated that he undertook the work of installation of extra cables and HDPE pipes and in this regard made certain communications as Arb App No. 01 2021 CM No. 6039 2021 well but Respondents failed to reply. It is further contended that the General Conditions of Contract annexed as Annexure I to the Work Contract contain an Arbitration Clause i.e. Clause 11 and therefore the Appellant served a notice invoking arbitration which is said to have been replied by the Respondents. It is averred that the Respondent No.1 is in the process of releasing further payments in favour of Respondents 2&3. It is maintained by petitioner that he had filed a Petition under Section 9 of the Act of 1996 before the Court of learned 3rd Additional District Judge Srinagar wherein on 17th of June 2021 an Order of status quo was passed. Thereafter as stated the Appellant claims to have observed that General Condition of Contract had not been signed by him as such he thought that the provisions of Section 9 of the Act would not be proper remedy so he filed a civil Suit before the learned Chief Judicial Magistrate Srinagar and accordingly withdrew the arbitration Petition. In the said civil Suit the learned Chief Judicial Magistrate Srinagar vide Order dated 12th of July 2021 is stated to have dismissed the application for grant of ad interim injunction with the observation that the arbitration agreement is valid. Consequently the Appellant claims to have withdrew the said Suit and filed the petition under Section 9 of the Arbitration and Conciliation Act before the learned Single Judge. The learned Single Judge vide the impugned Judgment dated 1st of September 2021 has dismissed the said Petition filed by the Appellant. Arb App No. 01 2021 CM No. 6039 2021 Mr Aatir Javed Kawoosa the learned Counsel representing the Appellant submitted that the Petition of the Appellant filed under Section 9 of the Act of 1996 has been dismissed by the learned Single Judge without appreciating the contentions raised by the Appellant supported by the scheme of law and the judgments passed by the Supreme Court. It is submitted that the Appellant in order to safeguard his rights guaranteed under the Act of 1996 qua protecting the lis had sought the relief of stopping the payment in favour of Respondents 2 and 3 till the dispute between the parties was resolved in arbitration which was not in any manner beyond the scope and mandate of Section 9 of the Act of 1996. It is pleaded that compliance with Section 11 of the Act of 1996 is not a condition precedent for seeking interim relief under Section 9 of the Act which fact has been wrongly considered and finding returned by the learned Single Judge. The next contention raised by the learned Counsel for the Appellant is that the learned Single Judge has wrongly interpreted the arbitration clause as provided under Clause 11(1) by holding that the jurisdiction was at Satna Madhya Pradesh and has not appreciated the fact that the subject matter of the dispute was in Srinagar where the work was executed agreement(s) drawn and cause of action accrued. In support of his contentions the learned Counsel has referred to and relied upon judgment rendered by the Apex Court in case reported as ‘(2012) 9 SCC 552’. Mr Jahangir Iqbal Ganai learned Senior Counsel representing the Respondents 2 and 3 submitted that the Judgment passed by Arb App No. 01 2021 CM No. 6039 2021 the learned Single Judge has been passed in tune with the mandate of law and does not call for any interference from this Court. It is submitted that the Petition filed by the Appellant before the learned Single Judge was a gross abuse of process of law besides same was filed on misrepresentation and suppression of facts. It is contended that a party approaching the Court with unclean hands is not entitled to any relief prayed for. The learned Senior Counsel avers that in case the relief sought for by the Appellant in the Petition filed before the leaned Single Judge was is granted then in such eventuality the entire project will get derailed thereby causing great loss to public interest. We have heard the learned Counsel for the parties and have also gone through the pleadings on record. The learned Single Judge has dismissed the Petition filed by the Appellant under Section 9 of the Act of 1996 seeking grant of interim relief by holding that it cannot usurp the jurisdiction of the arbitral Tribunal even at a pre arbitration stage. This finding of the learned Single Judge cannot be said to be erroneous when there is a clear arbitration clause provided in the agreement between the parties. Merely because it is easier to obtain interim relief from a Court rather than from an arbitrator or arbitral tribunal the Court cannot allow the Appellant to invoke the jurisdiction of the Court by filing Petition under Section 9 of the Act of 1996 instead of availing the remedy of arbitration as provided in the agreement between the parties. Besides in terms of Clause 11.1 of the General Conditions of Contract it is clearly provided Arb App No. 01 2021 CM No. 6039 2021 that any dispute or different whatsoever arising between the parties out of or relating to the construction meaning scope operation or effect of the contract or the validity or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration ICA) and the award made in pursuance thereof shall be binding on the parties. There is no denial of the fact that in case a party clearly shows that it intends to initiate arbitral proceedings but in view of the emergent circumstances rendering the requirement of seeking interim measures as necessity not awaiting proceedings under Section 17 of the Act before the Arbitrator or Arbitral Tribunal he may approach the Court by filing Petition under Section 9 of the Act for seeking the interim relief. However in the case in hand the conduct of the Appellant has been such that no leverage can be granted to him on that count too. This is so because on the one hand the Appellant on 17th of June 2021 filed Petition under Section 9 of the Act whileas on the same day he filed a civil Suit too on the same subject matter seeking the same relief thereby making it clear beyond any shadow of doubt that no emergent necessity existed for grant of interim relief as otherwise he would not have withdrawn the Petition under Section 9 and pursued the same The other important aspect on which the learned Single Judge has dismissed the Petition under Section 9 of the Act filed by the Appellant is with regard to jurisdiction being at Satnaif any subsisting as on date shall stand vacated. (Ali Mohammad Magrey) September 28th 2021 Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

RBI, an instrumentality of State; private banks to come under purview of Art. 226 under certain circumstances: Calcutta High Court

When MSMEs are funded by private banks, their functions gather a wider ambit since it involves discharging of public duties which enable them to come under the purview of Art. 226. A bench comprising of Justice Sabyasachi Bhattacharyya has re-affirmed RBI as an agent of the state and also widened the ambit of private bank functions in the recently concluded case of M/s Pearson Drums & Barrels Pvt. Ltd. Vs. The General Manager, Consumer Education & Protection Cell of Reserve Bank of India and other [WPA No. 21710 of 2017] which involves the issue of MSME credit facilitation through private banks and the refund of processing fees in the event of a contract breach. The petitioner company (an MSME) entered into an agreement with the respondent private bank for a sanction of credit facility of Rs. 25.05 crore; 0.60 percent of which was to be paid as a processing fee to the bank. The fresh sanction took place on November 6, 2015, which also included the additional conditions that in the event of the applicant’s non-compliance with the sanction conditions or refusal to take disbursal, the initial amount paid as processing fees would stand forfeited. However due to an inordinate delay of 50 days between the processing of credit to the petitioner sabotaged the latter’s financial plans, the petitioner sought the refund of the processing fee. Subsequent meetings took place between the parties before the State Level Inter-Institutional Committee (SLIIC) and the RBI which failed to ameliorate the situations, following which the petitioner filed a writ petition before the high court. The Court made it clear that the petitioner not only claimed a refund of the processing fees in full but also challenged the communication with RBI which refuted the petitioner’s claim for a refund from the respondent which forms the basis of the present writ petition. The Court observed RBI to be an instrumentality of the State. R.D. Shetty vs International Airport Authority [ 1979 AIR 1628, 1979 SCR (3)1014] was one of the cases to lay down the instrumentality or agency test which was later confirmed in the following year’s judgment of Ajay Hasia vs Khalid Mujib Sehravardi . The test laid down was as follows: What stood out to be distinct in the judgement is the Court’s treatment of assistance provided by private banks to the MSMEs. The learned counsel for the respondent had placed reliance on Federal Bank Limited Vs. Sagar Thomas and others [2003) 10 SCC 733] to contend that a writ petition under Article 226 of the Constitution is not maintainable against private banks. The Court rather took on a liberal interpretation and stated, “[…] the functions discharged by the respondent no.4-Bank are of a public nature and, as such, pertain to the discharge of public duties…although such grievance forms the cause of action of the petitioner, but also has a wider connotation insofar as the liabilities of banks in respect of a refund of processing fees are concerned.” The Court also took note of the differences of terms between the initial “in-principle” sanction and the fresh sanction dated November 6, 2015, and pointed that the bank had changed the pre-meditated conditions agreed upon between the petitioner and the respondent “In the present case, the reason was that the Bank sought a novation of the in-principle sanction agreement by issuance of a fresh sanction on deviated terms. Thus, the decision of the respondent no.4 and that of the Consumer Education & Protection Cell of the Reserve Bank of India to refuse the petitioner’s claim for refund of entire processing fees has to be set aside.”

In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya WPA No. 217117 M s Pearson Drums & Barrels Pvt. Ltd. Vs. The General Manager Consumer Education & Protection Cell of Reserve Bank of India and others For the petitioner For the respondent nos. 1 2 and 3 For the respondent nos. 4 5 and 6 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: Mr. Nilendu Bhattacharya Ms. Arunima Lala Mr. A.K. Upadhyay Ms. Suchismita Chatterjee Mr. Malay Kumar Seal Mr. Snehashis Sen Mr. Abhishek Banerjee The petitioner is a company coming within the purview of the Micro Small and Medium Enterprises Act 2006 and is engaged in the business of manufacture and supply of M.S. Barrels to the Oil Sector and various other sectors. On September 24 2015 the respondent no.4 that is the IndusInd Bank granted “in principle” sanction subject to final sanction of the Credit Committee for credit facility worth Rs.25.05 crore to the petitioner. It was mentioned that the processing fee of 0.60 percent of the total sanction facility along with applicable rates and taxes have to be paid by the petitioner to avail of the financial assistance. It was also mentioned therein that the communication by the bank to the petitioner did not create any binding obligation on the bank to release any payment in favour of the petitioner by way of financial assistance provided the bank issued its final sanction letter to that effect and the terms thereof were duly accepted by the petitioner. 2. Subsequently by an e mail dated September 29 2015 the respondent no.4 asked the petitioner to deposit Rs.14 27 850 as processing fees including service tax. In the said e mail. It was mentioned that if by any reason the sanction did not go through from the bank’s end the bank would refund the same. The petitioner paid such amount pursuant to the bank’s e mail. 3. Subsequently on November 6 2015 respondent no.4 issued a fresh sanction of credit limits in favour of the petitioner. The relevant communication in that regard requested the petitioner to return to the bank the duplicate copy of the sanction communication along with annexures duly signed by the authorized signatory of the petitioner company and the guarantors as a token of the petitioner having accepted the terms and conditions within 30 days of the letter failing which it would be presumed that the petitioner was not interested in availing continuation of the facilities and the bank may in its discretion withdraw them without any further notice to the petitioner. The said fresh sanction included an additional condition that processing fees would be non refundable post acceptance of the sanction letter and in the event of the applicant being unable to comply with the sanction conditions or refusing to take disbursal on which event the amount paid as processing fees shall be forfeited. However the petitioner issued a communication to the respondent no.4 bank on November 16 2015 seeking refund of the processing fees of Rs.14 27 850 against delay and non receipt of final sanction letter. In the said letter the petitioner clearly indicated that it was unable to accept the sanction on the grounds as mentioned therein. One of such grounds was that there had been inordinate delay of 50 days between interactive sanction dated September 24 2015 and the sanction dated November 6 2015 which according to the petitioner had jeopardized the petitioner’s financial planning and almost defeated the purpose of switching over from the petitioner’s present banker that is the State Bank of India. It was also mentioned as a ground of refusing to accept the sanction that there were several deviations from the interactive sanction dated September 24 2015 and the final sanction which deviations were indicated in detail in the communication dated November 16 2015. 5. Subsequent to the refusal to accept the sanction on the part of the petitioner on the ground inter alia of deviation from the in principle sanction originally granted the petitioner sought a refund of the processing fees on several subsequent occasions. 6. However by a further e mail dated April 5 2016 respondent no.4 intimated the petitioner that the processing fee was non refundable as per terms of sanction. The bank sought an intervention of the Managing Director and CEO of respondent no.4 by a representation dated July 25 2016 thereby reiterating its grounds for not accepting the fresh sanction. 8. On November 3 2016 on the complaint of the petitioner against respondent no.4 regarding non refund of the processing fee a notice of hearing was given to the petitioner by a Sub Committee of the State Level Inter Institutional Committee promoted by the Reserve Bank of India to hold meetings periodically to address problems of MSMEs mostly finance related issues. The minutes of the meeting of such Sub Committee dated November 18 2016 was subsequently communicated to the Director MSME Government of West Bengal. In the said minutes it was observed after detailed deliberation with members among other things that there should be a cap on actual expenditure and accordingly the SLIIC suggested to cap the same to the extent of 25 percent of the same and the balance 75 percent of the processing fee should be refunded to the petitioner company. The petitioner approached the Reserve Bank of India with a similar complaint. In its reply dated November 25 2016 the RBI intimated the petitioner that as per the understanding of the RBI the processing fees were non refundable as per the terms and conditions of the sanction letter of the concerned bank. 10. However the respondent no.2 that is the Assistant General Manager of the Consumer Education & Protection Cell of Reserve Bank of India CEPC) suo moto took a contrary view subsequently and called a meeting with the petitioner and respondent no.4 on January 13 2017. By an e mail dated January 25 2017 respondent no.2 intimated the respondent no.4 that the petitioner’s complaint primarily related to refund of processing fee for a loan facility wherein there were lapses on the part of both the bank and the customer at different stages of the related transaction trail. The respondent no.4 was urged to take urgent action on the lines of the discussion held in the previous meeting dated January 13 2017. 11. Subsequently the petitioner gave several reminders to respondent no.4 to act on the decision of the SLIIC Sub Committee dated November 18 2016 and to release 75 percent of the processing fee in favour of the petitioner. Ultimately respondent no.4 vide communication dated May 12 2017 intimated the petitioner that the GM CEPC RBI Kolkata had suggested in the meeting held on January 13 2017 that the dispute be settled with respondent no.4 waiving 50 percent of the processing fees collected from the petitioner. By subsequent communications the petitioner reiterated its claim for the processing fees disputing the communication of the bank with regard to the meeting held on January 13 2017. The petitioners being thus aggrieved have filed the present writ petition asking for a refund of 100 percent of the processing fee along with interest for not accepting the sanction letter dated November 6 2015 and for setting aside the impugned letter dated June 12 2017 issued by respondent no.4. Learned counsel for the petitioner submits that it was clearly mentioned in the e mail demanding processing fees that if the sanction did not go through from the bank’s end the bank would refund the processing fees. Since the fresh sanction issued by the bank was delayed and defeated the purpose of the credit facilities and in view of the several deviations from the in principle sanction the petitioner refused to accept such fresh sanction. Thus it is submitted that in view of the bank having failed to adhere to the terms and conditions of the in principle sanction the refusal regarding such sanction was from the bank’s end. It is further submitted that the clause regarding non refundability of the processing fees which found place in the fresh sanction was subsequently inserted and did not find place in the original in principle sanction. In view of the petitioner having refused to accept such fresh sanction no question of applicability of such clause to the petitioner can arise. 17. Moreover since there was no acceptance of the fresh sanction there also could not arise any question of post acceptance non refundability of the processing fees. 18. Learned counsel for respondent nos. 1 to 3 argues that the decision taken by the SLIIC Sub Committee on November 18 2016 which recommended that 75 per cent of the processing fee should be refunded to the petitioner was not binding on the concerned Bank being respondent no.4. Respondent nos. 1 to 3 contend that the framework for revival and rehabilitation of MSMEs by the Reserve Bank of India which was constituted to look into the problems of MSMEs only contemplated suggestive advisory decisions of the Sub Committee of SLIIC. Such Sub Committee by virtue of Memo No. 209 SLB PS 17 dated March 8 2017 was discontinued. That apart it is submitted that in the present case the suggestions of the said Sub Committee could not be considered on a footing equivalent with RBI guidelines or statutory directions. Learned counsel appearing for the respondent no.4 Bank submits that it was clearly stipulated in the e mail dated September 29 2015 requiring the petitioner to pay processing fees that the same would be refunded only if the sanction did not go through from the Bank s end. In the present case however it is the petitioner who refused to accept the sanction granted by the Bank. It is argued that even in the in principal sanction it was indicated that the processing fees had to be paid by the petitioner. 20. That apart the fresh sanction issued in favour of the petitioner dated November 6 2015 also indicated that the processing fees would be non refundable post acceptance of the sanction letter and in the event of the applicant being unable to comply with the sanction conditions or refusing to take disbursal in which case the processing fees would be forfeited. In the present case since the petitioner refused to accept the sanction no liability is cast upon the petitioner to return the processing fees. 21. That apart it is argued by the respondent no.4 Bank that the processing fee was an "upfront" payment and was utilized by the petitioner for taking necessary steps to process the application for loan made by the petitioner getting approval of the relevant credit committee and drawing up and issuing the fresh sanction. Hence there is no scope of refund of such fees on the petitioner s refusal to accept the fresh sanction. 22. By placing reliance on Federal Bank Limited Vs. Sagar Thomas and others reported at10 SCC 733 it is argued by learned counsel appearing for the respondent no. 4 Bank that a writ petition under Article 226 of the Constitution is not maintainable against private 23. Upon considering the submissions of the parties it is evident that the petitioner has not only claimed refund of full processing fees from respondent no.4 a private bank but has also challenged the communication dated June 12 2017 of the Assistant Manager CEPC RBI which closed the dispute raised by the petitioner regarding return of processing fees. Since the Reserve Bank of India is an instrumentality of the State it comes squarely within the meaning of State" as contemplated in Article 12 of the Constitution. Thus the writ petition is maintainable. That apart the functions discharged by the respondent no.4 Bank are of a public nature and as such pertain to the discharge of public duties. The question raised by the petitioner in the present writ petition is not restricted to the grievance of the petitioner solely although such grievance forms the cause of action of the petitioner but also has a wider connotation insofar as the liabilities of banks in respect of refund of processing fees is concerned. Hence the objection regarding maintainability of the writ petition is turned down. 24. On merits the communications between the respondent no.4 and the petitioner indicate certain aspects of the matter. The in principle sanction dated September 24 2015 contained a clause charging processing fee as a percentage of the total sanction facility along with applicable rates and the taxes. Thus it cannot be said that the upfront payment was confined to the initial processing charges only. The expression upfront can have different connotations. It can be an initial payment for the first phase of processing as well as the payment for the processing of the entire loan sanction if the same materializes between the bank and the borrower. Since the processing fee was charged in the present case as a percentage of the total sanction facility there is prima facie presumption that such fees contemplated the entire processing charges up to the finalization of the sanction of loan and not merely restricted to the initial consideration by the bank. Such presumption has not been rebutted by cogent material by the bank. 25. The same clause also indicated that the communication by the bank to the petitioner did not create any binding obligation on the bank to release any payment in favour of the petitioner by way of financial assistance and was subject to issuance of "final sanction letter" to that effect and the terms thereof being duly accepted by the petitioner. It is noteworthy that within five days from the in principle sanction that is on September 29 2015 the Bank sent an e mail to the petitioner requiring the petitioner to deposit the processing fees. It was further mentioned that if "by any reason" the sanction does not go through from the Bank’s end the Bank would refund the processing fees. 27. The next communication by the Bank was on November 6 2015 which intimated a "fresh sanction" of credit limits to the petitioner. The term "fresh" itself clearly indicates that there were variations in terms from the in principle sanction initially forwarded to the 28. The in principle sanction indicated that the Bank would have a binding obligation only after the Bank issues its "final sanction letter" to that effect and the terms thereof are duly accepted by the petitioner. There is a sea of difference between the terms "final" and fresh". The term itself indicates that the in principle sanction was not finalized in its initial form but a fresh sanction was offered to the petitioner which deviated in several respects from the in principle sanction. Such deviations were clearly pointed out by the petitioner in its communication to the bank refusing to accept the fresh sanction. As such it is the respondent no.4 which failed to go through the motions of giving a logical conclusion to the in principle sanction by a final sanction on the same terms after the approval of its Credit Committee. The novation of the terms is a clear indicator that the fresh sanction was a different proposal from the initial in principle sanction. As such taking into account the expression used in the e mail asking for processing fees immediately after the in principle sanction the said in principle sanction did not go through from the bank s end. That coupled with the phrase "by any reason" preceding the phrase regarding the sanction not going through from the bank s end is wide enough to take within its purview a fresh sanction being issued by the Bank on terms different from the in principle sanction. 29. The additional clause which was introduced regarding processing fees in the fresh sanction was never accepted by the petitioner in view of non acceptance of the fresh sanction as a whole. As such the said clause cannot be said to be binding as far as processing fees are concerned on the petitioner. The relevant provisions would only be those contained in the in principle sanction and the e mail regarding processing fees dated September 29 2015. Even if it were assumed that the said clause in the fresh sanction was binding on the petitioner it clearly envisages that the processing fees would be non refundable "post acceptance of the sanction letter". Such post facto clause could not have referred to the previous in principle sanction letter but had to be read in the context of the fresh sanction which was never accepted by the petitioner. Thus the term post acceptance" does not apply at all in the present case which would render the processing fees non refundable. By the same logic the question of the petitioner being unable to comply with the sanction conditions or refusing to take disbursal did not arise in view of non acceptance of the fresh sanction by the petitioner on justified grounds. 31. The refusal of the petitioner dated November 16 2015 clearly indicated the gross deviations in the fresh sanction from the in principle sanction to which the petitioner had agreed. Even discounting the ground of delay taken in such refusal letter the variance between the fresh and in principle sanctions is sufficient ground to come to a finding that the petitioner was not at fault but it was the Bank which issued a fresh sanction on terms different from the in principle sanction thereby seeking a novation of the offer for all practical purposes. 32. Thus the relevant clause in the e mail dated September 29 2015 is clearly applicable in the present case as the sanction contemplated in the in principle sanction did not go through from the Bank s end. 33. The argument of the RBI as regards the non binding nature of the SLIIC Sub Committee recommendations is correct in principle. There is no binding effect of such recommendations since those cannot be equated with RBI guidelines which have statutory force behind them. 34. However on the facts of the case respondent no.4 while discharging its public duty which is within the domain of the State to discharge acted de hors its own promise of refund on which the petitioner acted which debars respondent no.4 by the principle of estoppel from refusing to refund the processing fees. The fresh sanction letter dated November 6 2015 in no uncertain terms indicated that unless the petitioner returned the duplicate copy of the same with annexures duly sanctioned by the authorized signatories by the petitioner company and the guarantors as a token of acceptance of the terms and conditions within 30 days of the letter the fresh sanction would not come through and or be finalized. Such clause is also a clear pointer to the fact that there was no concluded agreement on the fresh sanction between the parties in view of the petitioner having not accepted such fresh sanction thereby precluding the applicability of the clause relating to processing charges inserted in the fresh sanction. The variance of terms from the end of the Bank provide sufficient justification for the petitioner not to accept the fresh sanction. Hence it was from the Bank s end that the transaction did not go through. 35. The Bank cannot now resile from its stand which is revealed from a conjoint reading of the in principle sanction letter and the e mail asking for processing fees that the entire processing fees would be refunded in the event the sanction did not go through from the end of the respondent no.4 Bank "by any reason". In the present case the reason was that the Bank sought a novation of the in principle sanction agreement by issuance of a fresh sanction on deviated terms. Thus the decision of the respondent no.4 and that of the Consumer Education & Protection Cell of the Reserve Bank of India to refuse the petitioner s claim for refund of entire processing fees has to be set 36. Accordingly WPA No.21710 of 2017 is allowed thereby setting aside the decision of respondent no.2 on behalf of the Consumer Education Protection Cell of Reserve Bank of India dated June 12 2017. Respondent no.4 is directed to refund the entire processing fees of Rs.14 27 850 to the petitioner within 30 days from date. In default the respondent no.4 shall pay interest at the rate of 6 per cent per annum on the aforementioned amount that is Rs.14 27 850 till the date of payment of the refund. 37. There will be no order as to costs. 38. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. )

There is no useful purpose to keep a person in custody if he has duly cooperated in the investigation process: Delhi High Court 

When the petitioner has joined investigation and has already given his mobile phone to the investigating agency and the investigation is nearing completion, this Court is of the opinion that no useful purpose would be served in keeping the petitioner in custody as held by the High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Subramonium Prasad in the case of Amit Malik v. State  (BAIL APPLN. 1400/2021 & CRL.M.A. 6628/2021) The facts leading to the instant case are that the prosecutrix told the petitioner that she is contesting a divorce petition with her husband and there is a dispute regarding a flat with her husband. Her husband got a stay order in August, 2020 and the prosecutrix informed the petitioner that she will not require any help regarding the said flat. At the moment, the petitioner got to know that he will not be getting the flat, he started blackmailing and torturing the prosecutrix. In October, 2020 the petitioner asked the prosecutrix to accompany him to kalka mandir and picked her from her residence. As soon as the prosecutrix sat in the car, the petitioner locked her inside the car and took her phone away, recklessly drove the car and molested her. He threatened her either to give her flat to him or get the bank papers signed. It is stated that the petitioner took an obscene video of the prosecutrix and started blackmailing her to fulfil his sexual desires. The petitioner installed GPS in her car and followed her at all locations. On the basis of the said complaint, the instant FIR was registered against the petitioner. The petitioner filed an application under Section 438 CrPC for grant of bail in the event of arrest in the instant FIR but the same was rejected by an order dated 16.04.2021 passed by learned Additional Sessions Judge. The petitioner approached this Court by filing the instant petition for grant of bail in the event of arrest for offences under Section 354, 354D, 506 IPC. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “Looking at the facts and circumstances of the case and the fact that the petitioner has joined investigation and has already given his mobile phone to the investigating agency and the investigation is nearing completion, this Court is of the opinion that no useful purpose would be served in keeping the petitioner in custody. In view of the above, this Court is, therefore, inclined to grant bail to the petitioner in the event of arrest on certain conditions.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 08th NOVEMBER 2021 IN THE MATTER OF: BAIL APPLN. 1400 2021 & CRL.M.A. 6628 2021 AMIT MALIK ..... Petitioner Through Mr. Lalit Valecha Ms. Sadaf Iliyas Khan Advocates ..... Respondent Through Ms. Kusum Dhalla APP for the State with SI Bhojraj Singh PS Maidan Mr. Sanjiv Dagar Advocate for the HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 438 Cr.P.C has been filed for grant of bail in the event of arrest in FIR No. 80 2021 dated 06.04.2021 registered at Police Station Maidan Garhi for offences under Section 354 354D 506 IPC. The facts leading to the instant case are as under : a) It is stated that on 06.04.2021 an FIR was registered against the petitioner on a complaint given by the complainant prosecutrix stating that she met the petitioner through a common friend in the month of May 2020 and became friends. b) It is stated that the prosecutrix told the petitioner that she is contesting a divorce petition with her husband and there is a BAIL APPLN. 1400 2021 dispute regarding a flat with her husband. It is stated that the petitioner offered her to buy the said flat. c) It is stated that her husband got a stay order in August 2020 and the prosecutrix informed the petitioner that she will not require any help regarding the said flat. It is stated that at the moment the petitioner got to know that he will not be getting the flat he started blackmailing and torturing the prosecutrix. d) It is stated that in October 2020 the petitioner asked the prosecutrix to accompany him to kalka mandir and picked her from her residence. It is stated that as soon as the prosecutrix sat in the car the petitioner locked her inside the car and took her phone away. e) It is stated that the petitioner recklessly drove the car and molested her. It is stated that he stopped near her home and continue to molest her pressed her breast twisted her arms strangulated her neck and threatened her either to give her flat to him or get the bank papers signed. He also wanted her to sign blank papers and stated that if she did not sign the blank papers he will spoil her son s life and started abusing her. f) It is stated that in October 2020 the petitioner came to her house in Amar Colony Lajpat Nagar and started pushing the prosecutrix in front of her son and she called her brother. It is stated that for three hours he was there and they had a heated quarrel. She stated that the petitioner was forcing her to sign the papers and transfer the flat in his name. BAIL APPLN. 1400 2021 g) It is stated that on 31st December 2020 the prosecutrix her friend and her husband went to celebrate new year at Jim Corbett. It is stated that the petitioner followed her and she requested the petitioner not to create any drama. It is stated that the petitioner took an obscene video of the prosecutrix and started blackmailing her to fulfil his sexual desires. h) It is stated that the petitioner installed GPS in her car and followed her at all locations. It is also stated that he has been stalking her on social media by making false accounts. It is further stated that the petitioner molested her on a number of occasions. i) On the basis of the said complaint the instant FIR was registered against the petitioner. j) The petitioner filed an application under Section 438 CrPC for grant of bail in the event of arrest in the instant FIR but the same was rejected by an order dated 16.04.2021 passed by learned Additional Sessions Judge. k) The petitioner approached this Court by filing the instant petition for grant of bail in the event of arrest in FIR No. 80 2021 dated 06.04.2021 registered at Police Station Maidan Garhi for offences under Section 354 354D 506 IPC. Heard Mr. Lalit Valecha learned counsel for the petitioner Ms. Kusum Dhalla learned APP for the State and Mr. Sanjiv Dagar learned counsel for the complainant prosecutrix. 5. Mr. Lalit Valecha learned counsel for the petitioner contends that the petitioner was a friend of the prosecutrix and had given her a sum of Rs.20 00 000 towards earnest money against the total consideration of BAIL APPLN. 1400 2021 Rs.32 00 000 in respect of Om Sai Ram Apartments in Ward No.8 Mehrauli New Delhi. It is stated that out of Rs.32 00 000 a sum of Rs.16 00 000 was transferred to the complainant prosecutrix through bank and a sum of Rs.4 00 000 was given in cash. It is also stated that the prosecutrix and the petitioner had a good relationship and the petitioner had given gifts like mobile phone. Learned counsel for the petitioner states that two instances in the instant FIR pertains to incidents of October 2020 and the FIR had been registered only on 06.04.2021. He contends that no reason has been given for the inordinate delay of six months in registering the FIR. He states that the petitioner sent a legal notice 26.11.2020 demanding registration of the flat in favour of the petitioner and handing over physical possession of the flat. The petitioner sent another legal notice dated 01.12.2020 to the prosecutrix to return a sum of Rs.40 00 000 failing which appropriate legal action was to be taken against her. It is stated that the complainant created a Whatsapp group Jim Corbett and the petitioner was added in the said group at the instance of the complainant prosecutrix. It is also stated that when the prosecutrix did not return the money the petitioner had filed a complaint dated 04.03.2021 at Police Station Kotla Mubarkpur for offences under Section 420 406 IPC. It is further stated that the present FIR is nothing but a counterblast to the complaint given by the petitioner. 8. Mr. Lalit Valecha learned counsel for the petitioner has taken this Court through the Whatsapp chats between the parties photographs and the videos taken at Jim Corbett. He states that the photographs videos and the BAIL APPLN. 1400 2021 Whatsapp chats shows that the prosecutrix was not in any kind of pressure from the petitioner and they went together as a group. Notice was issued on 29.04.2021. Status Reports have been filed. It is stated that the petitioner has joined investigation. Status Report indicates that the transactions between the complainant and the petitioner demonstrats deposit of a sum of Rs.16 00 000 in the account of the complainant. Status Report also reveals that five FIRs were registered against the petitioner out of which the petitioner has been convicted in FIR No.253 2008 registered at Police Station Kotla Mubarkpur for offences under Section 323 341 427 506 34 IPC. Status Report also reveals that FIR No.118 2012 registered at Police Station Malviya Nagar for offences under Section 506 509 IPC stands disposed of. Learned counsel for the petitioner states the two FIRs pertain to a matrimonial dispute between the petitioner and his erstwhile wife which stand settled. 10. Mr. Sanjiv Dagar learned counsel for the complainant prosecutrix contends that looking at the antecedents of the petitioner he does not deserve anticipatory bail and he will be posing a constant threat to the 11. A perusal of the material on record discloses that the petitioner and the complainant were known to each other. Status Report indicates that Rs.16 00 000 have been deposited by the petitioner into the account of the complainant. The Whatsapp chats and the photographs also reveal that the petitioner and the complainant were friends. It is also a fact that the petitioner has filed a complaint against the prosecutrix on 04.03.2021 which was prior to the registration of the instant FIR. There is also a delay in filing BAIL APPLN. 1400 2021 of the FIR for the incidents which alleged to have taken place in October 12. The parameters for granting anticipatory bail have been succinctly laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra 1 SCC 694 wherein the Supreme Court has observed as under: “112. The following factors and parameters can be into consideration while dealing with anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence iii) The possibility of the applicant to flee from justice iv) The possibility of the accused s likelihood to repeat similar or other offences v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people vii) The courts must evaluate the entire the accused very available material against carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases BAIL APPLN. 1400 2021 in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern viii) While considering the prayer for grant of anticipatory bail a balance has to be struck between two factors namely no prejudice should be caused to the free fair and full investigation and there should be prevention of harassment humiliation and unjustified detention of the accused ix) The apprehension of tampering of the witness or apprehension of threat to the complainant x) Frivolity in prosecution should always be the element of considered and genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail. is only Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means BAIL APPLN. 1400 2021 exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned after consideration of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event the option of approaching the superior court against the Court of Session or the High Court is always available.” 13. Looking at the facts and circumstances of the case and the fact that the petitioner has joined investigation and has already given his mobile phone to the investigating agency and the investigation is nearing completion this Court is of the opinion that no useful purpose would be served in keeping the petitioner in custody. In view of the above this Court is therefore inclined to grant bail to the petitioner in the event of arrest on the following conditions: a) The petitioner shall furnish a personal bond in the sum of Rs.50 000 with two sureties of the like amount out of which one of them should be the relative of the petitioner to the satisfaction of the Trial Court. b) It is stated that the prosecutrix resides at A 172 Upper Ground Floor Street No.24 Chattarpur Enclave Phase II New Delhi. The petitioner is directed not to come within five kilometres of Chattarpur Enclave Phase II New Delhi. c) The petitioner shall join investigation as and when called for. BAIL APPLN. 1400 2021 d) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. e) The petitioner shall give his address to the Investigating Officer and if he changes the address he shall intimate the same to the Investigating Officer. f) The petitioner shall not directly or indirectly contact or pressurize the prosecutrix her family members or any other witness or tamper with evidence. In case any complaint is received from the prosecutrix that the petitioner is trying to contact her and trying to put pressure on her if substantiated the protection granted by this Court shall stand cancelled forthwith. pending application(s) if any. 14. Accordingly the bail application is disposed of along with the NOVEMBER 08 2021 SUBRAMONIUM PRASAD J BAIL APPLN. 1400 2021

The discretion to grant bail cannot be exercised if the role of the accused is not yet unfurled and still requires to be investigated in the case: Jammu and Kashmir High Court

The accused cannot claim bail as a matter of right. The rule of bail and not jail cannot be pressed into service in the case of the applicant. Each case has its own peculiarities and circumstances which are required to be looked into while considering bail. This was held in the judgment passed by a single judge bench comprising of HON’BLE MR. JUSTICE PUNEET GUPTA in the matter of Mohd. Toyab V. UT of Jammu and Kashmir and others [Bail Appl. No. 14/2020], dealt with an issue where the petitioner filed a petition seeking bail as he has been booked for commission of offence under Section 420/120-B RPC in F.I.R initially registered with Police Station, Rajouri. The bail is sought on the ground that the accused has not committed any offence as he was only appointed as agent of M/s Hablas-e-Commerce Pvt. Ltd. and in case the applicant has collected money on behalf of the investors it was for the company and not in individual capacity. Further it is contended that the charge-sheet has been presented against the accused in the Court of law and in case any further recovery is to be made from the accused the same can be fruitful in case he is out of custody. It is further argued that some of the accused have been granted bail by the Court of learned Chief judicial Magistrate, Poonch in another related F.I.R having same allegations therein. Lastly, it is submitted that the accused is entitled to bail in view of the directions asked by the Apex Court on account of extra ordinary situation prevailing because of COVID-19 pandemic. The bail application has been opposed on the ground that the complicity of the accused is direct in the case as he had not only made the depositors to deposit the amount with the company but also utilized the same as is evident from the bank accounts of the applicant. The amount of more than Rs. 12 Crore was collected by deception from the investors by the company and their agents as is revealed by the investigations as of now. The investigation is still going on in the case. It is also submitted that the accused in the case are having no permission from RBI to collect the cash deposits nor having licence from any of the authorized authority to run the business. The company is a total fraud as per the reports. The involvement of other employees whose names surfaced during interrogation and the losses suffered by the depositors is being worked out. In case the accused is released on bail he can tamper with the evidence. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the Court does not find substantial change of circumstances to grant bail to the accused after the dismissal of the earlier application filed by the applicant for bail. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Mohd. Toyab EMG Bail Appl. No. 14 2020 EMG CrlM No. 14 2020 Reserved on: 28.05.2020 Pronounced on: 15.06.2020 Through : Mr. Sunil Sethi Sr. Advocate with Mr. Waheed Choudhary Advocate …Applicant v s UT of Jammu and Kashmir and others …Non applicant(s) : HON’BLE MR. JUSTICE PUNEET GUPTA JUDGE Through : Mr. Arshid Parvez Malik Dy.A.G The applicant seeks bail as he has been booked for commission of offence under Section 420 120 B RPC in F.I.R No. 76 2019 initially registered with Police Station Rajouri. The case was later on entrusted to Crime Branch Jammu for investigation. The application moved earlier for bail before the Court of Judicial Magistrate Kotranka was dismissed by that court vide order dated 22.04.2020. In the present application the bail is sought on the ground that the accused has not committed any offence as he was only appointed as agent of M s Hablas e Commerce Pvt. Ltd. and in case the applicant has collected money on behalf of the investors it was for the company and not in individual capacity. Further it is contended that the charge sheet has been presented against the accused in the Court of law and in case any 2 EMG Bail Appl. 14 2020 further recovery is to be made from the accused the same can be fruitful in case he is out of custody. It is further argued that some of the accused have been granted bail by the Court of learned Chief judicial Magistrate Poonch in another related F.I.R having same allegations therein. Lastly it is submitted that the accused is entitled to bail in view of the directions asked by the Apex Court on account of extra ordinary situation prevailing because of COVID 19 pandemic. The objections to the application have been filed wherein the bail application has been opposed on the ground that the complicity of the accused is direct in the case as he had not only made the depositors to deposit the amount with the company but also utilized the same as is evident from the bank accounts of the applicant. The amount of more than Rs. 12 Crore was collected by deception from the investors by the company and their agents as is revealed by the investigations as of now. The investigation is still going on in the case. It is also submitted that the accused in the case are having no permission from RBI to collect the cash deposits nor having licence from any of the authorized authority to run the business. The company is a total fraud as per the reports. The involvement of other employees whose names surfaced during interrogation and the losses suffered by the depositors is being worked out. In case the accused is released on bail he can tamper with the evidence. The accused was arrested on 10.2.2020. The investigation in the case as is made out from the report is still in progress. Learned senior counsel for the applicant has submitted that the accused is only an employee of the company and in case he has collected some money 3 EMG Bail Appl. 14 2020 from the depositors the same is on behalf of the company for which the applicant cannot be made scapegoat. He has also relied upon a document which he has placed on record and of which mention is also made in the objections. The document cannot be considered in isolation as the role of the applicant is not confined to mere collection of money from the investors but goes beyond the same as the money collected is stated to have been utilized by the applicant for his personal use. The bank accounts of the applicant in various banks where the money to the tune of about two crores was credited are now without any balance. The purchases are alleged to have been made by the applicant accused from the money collected by him and he could not account for same. The accused being the employee of the company in question and therefore his role is limited only to that extent is not gathered from the objections report. The other contention of the applicant is that the custody of the applicant cannot be helpful in further investigation of the case as in case further revelation is to be made the same is possible only if the accused is released from the custody. The learned counsel for the other side has vehemently argued that the release of the accused on bail at this juncture on the basis of the contention raised by the applicant has no force as there is every apprehension that the accused can flee from the process of law as his involvement in the case is direct and the amount involved in the transaction is not small one. The Court while considering the bail cannot overlook the alleged involvement of the accused in the case as has surfaced so far during the investigation. It is always convenient to raise the plea as espoused on behalf of the 4 EMG Bail Appl. 14 2020 applicant. The argument is required to be rejected for the simple reason that the amount involved is yet to be finally determined and the persons who have invested the amount in the company are yet to be investigated. The accused may escape from the clutches of law cannot be ruled out as the methodology adopted by the accused along with others who were part of the company was well thought one with a view to dupe the investors. The company duped the investors within no time after collecting the money from the depositors including the one who initially lodged the report and thus it speaks of the intention of the persons connected with the affairs of the company. The amount involved is found to be more than twelve crores as of now which is not a small one. The accused can be conveniently said to be involved in the economic offence. The preliminary charge sheet has been filed arising out of the F.I.R in question and for that reason the accused should be granted bail is another plea raised on behalf of the applicant. The learned counsel for the respondent has submitted that the filing of the charge sheet cannot be the sole criteria for granting bail to the accused as the supplementary charge sheet is yet to be filed on the completion of the investigation and the arrest of the some of the accused persons is yet to take place. No doubt the plea of the respondent that the bail cannot be granted to the accused on the ground that other accused are yet to be apprehended cannot be accepted for not granting bail to the accused. The filing of the charge sheet can be one of the reasons for bailing out the accused in any given case if the other conditions for grant of bail stand fulfilled. However in the present case it is specifically 5 EMG Bail Appl. 14 2020 mentioned in the objections that only the preliminary charge sheet has been filed and various aspects of the case are still under lens. The court is not impressed with the argument of learned counsel for applicant to grant bail on above stated plea. Last but not the least the plea raised for grant of bail on the basis of the directions passed by the Hon’ble Apex Court in the light of COVID 19 pandemic is of no avail to the applicant. The directions of the Hon’ble Supreme Court do not speak of the release of the persons who are accused of the offences which carry punishment upto seven years without exception during the present scenario. The release of the accused has to be on case to case basis if the Committee constituted for the purpose of release of the prisoners under trials is of the view that the under trial should be released on bail. The present case is not such where the Court finds that the discretion is required to be exercised by the Court in favour of the applicant. The offence in which the accused is booked carries sentence up to seven years but the role of the accused which is unfurled so far and which still requires to be investigated in the case the discretion to grant bail in favour of the applicant cannot be exercised at this juncture. So far as the grant of bail to the some of the accused vide order dated 11.4.2020 by the learned Chief Judicial Magistrate Poonch is concerned the same cannot be of any assistance to the applicant. The bail has been granted in another F.I.R though it is pleaded that the allegations leveled in that F.I.R against the accused who have been bailed out are the same as in F.I.R No. 76 2020 which is subject matter of the present application. 6 EMG Bail Appl. 14 2020 The said Court has directed release of the accused on the basis of the directions of the Apex Court passed in the light of COVID 19 pandemic without discussing if the said accused should be granted bail otherwise in the light of the facts of the case emanating from the F.I.R in which they have been released. The accused cannot take any mileage on the basis of the order passed by the Chief Judicial Magistrate Poonch as in any case the involvement of the accused is apparently deep in the matter. The accused cannot claim bail as a matter of right. The rule of bail and not jail cannot be pressed into service in the case of the applicant. Each case has its own peculiarities and circumstances which are required to be looked into while considering bail. 10. The Court does not find substantial change of circumstances to grant bail to the accused after the dismissal of the earlier application filed by 11. The Court finds no reason to allow the bail application at this stage and the applicant for bail. is accordingly dismissed. JUDGE PUNEET GUPTA) Whether the order is speaking Yes No Whether the order is reportable Yes No

Elder Age and No Criminal Antecedent forms the basis for granting anticipatory bail by the Court: High Court of Patna

Appellant being aged 81 years old granted anticipatory bail in the matter of assault and abusing the informant in the name of caste. The allegations were found to be general and omnibus by the court and hence, the decision was taken by keeping into consideration the age of the appellant and others. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Durganand Choudhary v. The State of Bihar[Criminal Appeal (Sj) No. 3801 of 2021].  The facts of the case were that an instant appeal was directed against the order by which prayer for anticipatory bail of the appellant was rejected. The appellant was apprehended arrest in connection with the Case, instituted under Sections 341, 323, 504, 506 of the Indian Penal Code, 1860 and 3(1)(iii)(ix)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The allegation is of assault and abuse in the name of a caste of the informant. Learned counsel for the appellant submitted that he is 81 years of age and has been implicated with mala fide intention. It was submitted that no overt act is alleged against him and only general and omnibus allegation that there was abuse using caste word. It was added that the appellant had no criminal antecedent and there was a dispute against a plot of land of which the existing rival parties are claiming ownership. The Special Public Prosecutor contended that the appellant was also a party to the case of the assault and abuse in the name of caste against the informant. 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, in view of there being general and omnibus allegation of assault and use of abusive caste language as also the appellant having no criminal antecedent, being aged about 81 years and seven similarly situated co-accused having been granted anticipatory bail, the Court is inclined to allow the prayer for pre-arrest bail.” The appeal was allowed and the order impugned was set aside.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo. 38021 Arising Out of PS. Case No. 80 Year 2017 Thana SC ST District Purnia Durganand Choudhary @ Durga Choudhary aged about 81 years Male Son of Late Baijnath Choudhary Resident of Jhanda Chowk Bhatta Bazar PS K Hat District Purnia The State of Bihar ... Appellant s ... Respondent s For the Appellant s For the State Mr. Prasoon Sinha Advocate Mr. Binay Krishna Special PP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 07 10 2021 The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the appellant which was 2. Heard Mr. Prasoon Sinha learned counsel for the appellant and Mr. Binay Krishna learned Special Public Prosecutor for the 3. The instant appeal is directed against the order dated 31.07.2021 passed by the learned 1st Additional District and Sessions Judge cum Special JudgePurnia in ABP No. 61 2021 CIS No. 61 2021 by which prayer for anticipatory bail of the appellant has been rejected Patna High Court CR. APPNo.38021 dt.07 10 2021 4. The appellant apprehends arrest in connection with SC ST PS Case No. 817 dated 02.11.2017 instituted under Sections 341 323 504 506 of the Indian Penal Code 1860 and 3(1)(iii)(ix)(x) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act 1989 5. Initially the complaint was filed against the complainant and thereafter under Section 156(3) of the Code of Criminal Procedure 1973 the present FIR has been instituted 6. The allegation against the appellant and others is of assault and abuse using caste name of the informant 7. Learned counsel for the appellant submitted that he is 81 years of age and has been implicated with mala fide intention It was submitted that no overt act is alleged against him and only general and omnibus allegation that there was abuse using caste word. Learned counsel submitted that similarly situated seven co accused have been granted anticipatory bail by a co ordinate Bench by order dated 26.08.2021 passed in Cr. AppealNo 32021. Further it was submitted that the appellant has no criminal antecedent and there was dispute with regard to a plot of land of which the rival parties are claiming ownership 8. Learned Special PP submitted that the appellant was also party to the assault and abuse using caste word Patna High Court CR. APPNo.38021 dt.07 10 2021 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of there being general and omnibus allegation of assault and use of abusive caste language as also the appellant having no criminal antecedent being aged about 81 years and seven similarly situated co accused having been granted anticipatory bail the Court is inclined 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 appellant 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 1st Additional District and Sessions Judge cum Special Judge Act Purnia in SC ST PS Case No. 817 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the appellant that the appellant and the bailors shall execute bond and give undertaking with regard to good behaviour of the appellant and that the appellant shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of his bail bonds Patna High Court CR. APPNo.38021 dt.07 10 2021 11. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the appellant to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the appellant 12. Accordingly the order impugned is set aside and the appeal stands allowed (Ahsanuddin Amanullah J

Under Section 313 Cr.P.C the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them: Rajasthan High Court.

Under   Section   313   Cr.P.C court has power to called accused for personally to explain any circumstances appearing in the evidence against him. At any stage, without previously warning the accused put such questions to him as the Court considers necessary. The judgment was given by the High court of Rajasthan in the case of Hariram vs. State Of Rajasthan through PP. Case No: [71/2015]. The judgment was passed by Hon’ble Mr. Justice Sandeep Mehta and Hon’ble Mr. Justice Rameshwar Vyas. The counsel for petitioner was Mr. Rinesh Kumar Gupta, Mr. Ashvin Garg and counsel for respondent represented by Ms. Rekha Madnani, AGA. The petitioner lodged a written F.I.R to the SHO, Police Station Mahaveer Naagar, and Kota on 23.01.2009 at 05.10 p.m. alleging inter alia that on the same day between 02.30 p.m. and 03.00 p.m., he was standing at Samrat Cross Roads.   His brother Pradeep Gautam, Sunny, Sonu and Deepak Gautam were having Kachoris at nearby Namkeen shop. They got into a quarrel with Kuldeep and Brijesh over a trivial matter.  Brijesh slapped Sunny.  After this incident, all went back to their respective homes. At about 04.00 p.m.-04.30 p.m., his brother Pradeep Gautam, Sonu and Deepak had gone to Samrat Cross   Roads   for   a   stroll.   Deepak   came   running   towards   the informant and told him that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys by baseball bats and sticks etc.  The informant immediately rushed to the place of incident and saw that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys with baseball bats in front of the Saras Booth.   The informant, Deepak, Sonu and Sunny intervened in on attempt to save Pradeep from the assailant’s who escaped on their motorcycles.   Deepak also received injuries in this incident.  Pradeep became unconscious because of the grave injuries suffered in the incident and thus, 108 ambulances were called and he was rushed to Apollo Modi Hospital, where the doctors declared Pradeep to be dead. The counsel for petitioner said that the prosecution case regarding participation of the accused   appellants   in   the   incident   is   well-proved   from   the testimony of the first informant Pramod Gautam  and the eye   witnesses   Deepak and   Brijesh   Kumar. The contention of the learned counsel for the appellants was that even if the highest allegations as set out in the testimony of the material prosecution witnesses are accepted to be true on the face of the record, the offence punishable under Section 302 IPC cannot be held proved out against the accused persons. The counsel said that the incident took place at the spur of the moment without any pre-meditation. It was further urged that the appellants’ do not have criminal antecedents.  They are young students and have suffered imprisonment of terms varying from 6 years to 7 years and thus, the conviction of the appellants should be altered either to Section 325 IPC or to Section 304 Part II IPC and they should be released on the sentences already undergone by them. The counsel for public prosecution said that the appellants and their companions (who could not be identified) formed an unlawful assembly and brutally  assaulted  the  deceased  Pradeep  Gautam without  any rhyme or reason and inflicted a forceful injury on the chest of the deceased  by  a  heavy  implement   i.e. baseball  bat,   causing fracture of the rib and as a result, the lung was ruptured leading to instantaneous death. The counsel urged that the conviction of the appellants as recorded by the trial court does not warrant any interference by this court in these appeals. The court after hearing the both counsels said that, a trivial verbal altercation took place between the parties, wherein accused Brijesh gave a slap to Sunny. In the second part, the deceased and his two companions Sonu and Deepak had gone to the same place where the incident of morning happened, and there it is alleged that Kuldeep, Brijesh, Hariram and 10-12 other boys came around and all these assailants, who were armed with baseball bats and sticks etc. launched an indiscriminate assault on the members of the complainant party. Further court said that the accused cannot be clothed with either the intention or the knowledge that by causing such injury on the chest of the victim, they could cause his death. The Court relied upon Supreme Court on judgment of kashi Ram & Ors. Vs. State of Madhya Pradesh (AIR 2001 SC 2902) held that the “offence attributed to the accused would not be one punishable under Section 302 IPC, but rather that under Section 304 Part II IPC”. The court view that the conviction of the accused appellants deserves to be toned down from the offence punishable Section 302 IPC read with Section 149 IPC to one under Section 304 Part II IPC read with Section 149 IPC. The appeals are partly allowed.

on 31 08 2021 at 11:43:43 AM ) AppellantVersusState Of Rajasthan through PP RespondentsConnected WithD.B. Criminal Appeal No. 47 2015Pradeep @ Mikki S o Ram Gopal R o Choudhary Bhawan Kansua Police Station Udyog Nagar KotaAppellantVersusState Of Rajasthan through PP RespondentD.B. Criminal Appeal No. 70 2015Brijesh Choudhary S o Babu Lal R o Jalodi Police StationTaleda District Bundi.(Presently confined in Central Jail Kota) AppellantVersusState Of Rajasthan through PP RespondentD.B. Criminal Appeal No. 91 2015Ajay Singh S o Kanta Singh Rajput R o Bapu Nagar KansuaChauraha Near Radha Krishana Mandir P.S. Udyog Nagar Kota(At present confined in Central Jail Kota) AppellantVersusState Of Rajasthan Through PP Respondent[CRLA 71 2015]For Appellants: Mr. Rinesh Kumar GuptaMr. Ashvin GargMr. Anil YadavMr. Sunil Kumar JainFor Respondent: Ms. Rekha Madnani AGAHON BLE MR. JUSTICE SANDEEP MEHTA HON BLE MR. JUSTICE RAMESHWAR VYASJudgmentDate of Pronouncement : 26 08 2021Judgment Reserved on : 19 08 2021BY THE COURT : PER HON’BLE MEHTA J.These four appeals have been preferred by theappellants herein for assailing the judgment dated 19.12.2014passed by the learned Additional Sessions Judge No.5 Kota inSessions Case No.03 2011 whereby each of the appellants hasbeen convicted and sentenced as under: For the offence punishable under Section 147 IPC : Toundergo simple imprisonment of one year alongwith a fine ofRs.2000 and in default of payment of fine to undergo additionalsimple imprisonment of one month.For the offence punishable under Section 302 read withSection 149 IPC : To undergo life imprisonment alongwith a fineof Rs.5000 and in default of payment of fine to undergoadditional simple imprisonment of three months.The sentences were ordered to run concurrently.[CRLA 71 2015]The appellants have suffered the custodial period asfollows : Name of the appellantCustodial period sufferedHariram7 years 7 days as on 07.08.2021Pradeep6 years 8 months 18 days as on 14.08.2021Brijesh6 years 11 months 2 days as on 14.08.2021Ajay Singh6 years 10 months 1 day as on 14.08.2021The appeals being connected are being decidedtogether by this common judgment.Briefly stated facts relevant and essential for disposalof the appeal are noted hereinbelow : Pramod Gautamlodged a written report(Ex.P 15) to the SHO Police Station Mahaveer Naagar Kota on23.01.2009 at 05.10 p.m. alleging inter alia that on the same daybetween 02.30 p.m. and 03.00 p.m. he was standing at SamratCross Roads. His brother Pradeep Gautam Sunny Sonu andDeepak Gautam were having Kachoris at nearby Namkeen shop.They got into a quarrel with Kuldeep and Brijesh over a trivialmatter. Brijesh slapped Sunny. After this incident all went backto their respective homes. At about 04.00 p.m. 04.30 p.m. hisbrother Pradeep Gautam Sonu and Deepak had gone to SamratCross Roads for a stroll. Deepak came running towards theinformant and told him that Pradeep was being assaulted byKuldeep Brijesh Hariram and 10 12 other boys by baseball batsand sticks etc. The informant immediately rushed to the place ofincident and saw that Pradeep was being assaulted by Kuldeep Brijesh Hariram and 10 12 other boys with baseball bats in frontof the Saras Booth. The informant Deepak Sonu and Sunny[CRLA 71 2015]intervened in on attempt to save Pradeep from the assailants whoescaped on their motorcycles. Deepak also received injuries inthis incident. Pradeep became unconscious because of the graveinjuries suffered in the incident and thus 108 ambulance wascalled and he was rushed to Apollo Modi Hospital where thedoctors declared Pradeep to be dead. On the basis of this report an FIR No.36 2009 came to be registered at the Police StationMahaveer Nagar Kota for the offences punishable under Sections143 148 149 and 302 IPC and investigation was commenced.The appellants were arrested and the usual recoveries wereeffected from them. The dead body of Pradeep was subjected toautopsy at the hands of Dr. Ashok Moondraat the MBSHospital Kota who noticed the following injuries on the body ofthe deceased : 1. Lacerated wound 2 cm x 1 cm x bone deep on the rightparietal region.2. Bruise 15 cm x 2 cm transverse on the chest.3. Bruise 10 cm x 2 cm little below the injury No.2.4. Bruise 10 cm x 2 cm on the chest below the injury No.3.5. Bruise 10 cm x 3 on the right side of abdomen.In addition thereto two superficial abrasions were noticed on theright leg and on the right cheek. On dissection of the skull sub dural haemorrhage was seenunderneath the injury No.1 but no internal damage was noticedon the skull or the brain. When chest was opened haemorrhagewas noticed 4th right rib was fractured and blood was collectedunderneath the injury. The right lung was ruptured and 500 ml. ofblood and blood clots were collected below the site of the injury.[CRLA 71 2015]The cause of death was found to be injury to right lung which wasopined to be sufficient in the ordinary course of nature to causedeath. The postmortem report was proved as Ex.P 5.After investigation a charge sheet came to be filedagainst the appellants for the offences punishable under Sections147 148 149 302 and 323 IPC. The case was committed andtransferred to the court of Additional Sessions Judge No.5 Kotafor trial where charges were framed against the appellants for theoffences punishable under Section 147 and 302 in the alternative302 read with Section 149 IPC. They pleaded not guilty andclaimed trial. The prosecution examined as many as 17 witnessesand exhibited 28 documents in support of its case. Upon beingquestioned under Section 313 CrPC the accused denied theprosecution allegations but did not choose to lead any evidence indefence. After appreciating the arguments advanced by learnedDefence Counsel and learned Public Prosecutor and analysing theevidence on record the trial court proceeded to convict andsentence the appellants as above. Hence these appeals.Learned counsel representing the appellants franklyconceded that the prosecution case regarding participation of theaccused appellants in the incident is well proved from thetestimony of the first informant Pramod Gautamand theeye witnesses Deepakand Brijesh Kumar[CRLA 71 2015]was contended that the incident took place at the spur of themoment without any pre meditation. The head injury noticed onthe body of the deceased was found to be simple in nature. Theinjury on the chest caused by a blunt weapon led to the fracture ofrib causing rupture of lung and proved fatal. It was thus contended that the accused persons neither had the intention northe knowledge that causing such injury to the deceased couldresult into his death. It was further urged that the appellants donot have criminal antecedents. They are young students and havesuffered imprisonment of terms varying from 6 years to 7 yearsand thus the conviction of the appellants should be altered eitherto Section 325 IPC or to Section 304 Part II IPC and they shouldbe released on the sentences already undergone by them. Insupport of their contention learned counsel for the appellantsplaced reliance on the decision of the Hon’ble Supreme Court inthe case of Khuman Singh & Ors. Vs. State of MadhyaPradeshformed an unlawful assembly andbrutally assaulted the deceased Pradeep Gautam without anyrhyme or reason and inflicted a forceful injury on the chest of thedeceased by a heavy implement i.e. a baseball bat causingfracture of the rib and as a result the lung was ruptured leadingto instantaneous death. Thus the learned Public Prosecutor urged[CRLA 71 2015]that the conviction of the appellants as recorded by the trial courtdoes not warrant any interference by this court in these appeals.She thus implored the court to reject the appeals in toto.We have given our thoughtful consideration to thesubmissions advanced at bar and have gone through the materialavailable on record.Learned counsel representing the appellants have fairlyconceded that the prosecution has proved participation of theaccused in the incident beyond all manner of doubt from theevidence of the eye witnesses referred to supra. Their argumentwas limited to the aspect that the incident took place on the spurof the moment without any pre meditation and that the accuseddid not act in a cruel manner. They were young boys at the timeof the incident. The incident erupted all of a sudden following thequarrel which took place in the morning. The accused could nothave comprehended by any stretch of imagination that a blow ofblunt weapon landed on the chest of the victim could prove fatal.Thus the accused neither had any intention nor the knowledgethat inflicting such injury could lead to the death of the victim.Their submission was limited to the nature of offence. After appreciating the evidence of the eye witnessesDeepakand Brijesh Kumarwe find that they haveportrayed the incident in two parts. In the first part a trivialverbal altercation took place between the parties wherein accusedBrijesh gave a slap to Sunny. In the second part the deceasedand his two companions Sonu and Deepak had gone to the sameplace where the incident of morning happened and there it isalleged that Kuldeep Brijesh Hariram and 10 12 other boys came[CRLA 71 2015]around and all these assailants who were armed with baseballbats and sticks etc. launched an indiscriminate assault on themembers of the complainant party. However the allegation thatnearly 15 persons armed with baseball bats launched anindiscriminate assault on the members of the complainant party isnot corroborated and is rather contradicted by the medicalevidence because Dr. Ashok Moondraafter conductingpostmortem took note of presence of only 7 injuries on theperson of the deceased of which 2 were superficial abrasions.The head injury was found to be skin deep and did not cause anydamage to the internal organs. Three injuries were noticed on thethoracic region one of which led to the fracture of the4th right rib which in turn perforated the right lung causing bleeding andultimately the victim expired as a result thereof. In thesecircumstances we are of the view that the accused can not beclothed with either the intention or the knowledge that by causingsuch injury on the chest of the victim they could cause his death.In the cases ofKashi Ram & Ors. Vs. State of MadhyaPradesh(ii) Dev Raj & Ors. Vs. Stateof Himachal PradeshandTaraChand & Ors. Vs. State of HaryanaHon’ble Supreme Court examined almost identical facts andcircumstances and held that the offence attributed to the accusedwould not be one punishable under Section 302 IPC but ratherthat under Section 304 Part II IPC. In wake of the discussion made hereinabove we are ofthe view that the conviction of the accused appellants deserves tobe toned down from the offence punishable Section 302 IPC read[CRLA 71 2015]with Section 149 IPC to one under Section 304 Part II IPC readwith Section 149 IPC.Accordingly the impugned judgment dated 19.12.2014passed by the learned Additional Sessions Judge No.5 Kota inSessions Case No.03 2011 is modified in the terms that convictionof the appellants is altered from Section 302 read with Section149 IPC to Section 304 Part II read with Section 149 IPC.However their conviction and sentence awarded for the offenceunder Section 147 IPC is affirmed. For the offence under Section304 Part II read with Section 149 IPC the sentence awarded tothe appellants is reduced to the period already undergone bythem as mentioned above. In addition thereto we hereby imposea fine of Rs.1 00 000 each upon each appellant. In default ofpayment of fine they shall further undergo simple imprisonmentof six months. The fine upon being deposited shall be paid to thefamily members of the victim by way of compensation underSection 357 CrPC. We further direct that the District LegalServices Authority Kota shall initiate proceedings for awardingcompensation to the family members of the deceased under theVictim Compensation Scheme. However keeping in view the provisions of Section 437 ACr.P.C. each of the appellants is directed to furnish a personalbond in the sum of Rs.15 000 and a surety bond in the likeamount before the learned trial court which shall be effective fora period of six months to the effect that in the event of filing of aSpecial Leave Petition against the present judgment on receipt ofnotice thereof the appellants shall appear before the SupremeCourt.[CRLA 71 2015]The appeals are partly allowed in these terms.The record be returned back to the trial court forthwith.(RAMESHWAR VYAS) J(SANDEEP MEHTA) JPramod Devesh

IBI Consultancy India V. DSC Ltd

 The Petitioner, IBI Consultancy India Private Limited is the Indian subsidiary of the IBI Group based in Canada. It is engaged in the business of providing system integration and maintenance service for Toll and Traffic Management Systems.The Respondent, DSC Limited, is a company registered under the Companies Act, 1956, having two subsidiary Companies; firstly Lucknow Sitapur Expressway Limited (LSEL) and secondly, Raipur Expressway Limited (REL), both of which are engaged in developing Expressways in collaboration with the National Highway Authority of India (NHAI).Vide email dated 16.02.2010 the Respondent Company sent a Request for Proposal (RFP) to the Petitioner-Company inviting technical and commercial proposal for their LSEL and REL Projects.Vide letter dated 07.06.2010 the Petitioner Company gave a proposal to execute the contract for installation, erection and commissioning of the Toll Collection and Traffic Control Equipments at NH-24. The proposal was accepted by the Respondent Company vide letter dated 14.06.2010 and the Contract was mutually finalized and executed on 30.08.2010 for the value of Rs. 1,55,20,700/-. In total, the Petitioner had entered into 6 separate contracts for the respective LSEL and REL projects, with the Respondent Company.The facts of the case suggest that, during completion of the projects, the Respondent-Company defaulted in releasing the agreed payment to the Petitioner-Company and the IBI Group, despite several verbal and written communications being exchanged between the parties.A legal notice for invoking Arbitration Clause and appointment of Mr. Debashish Moitra as the Arbitrator, was sent to the Respondent-Company on 24.04.2014. However, there was no reply from the other side.The IBI Group and the Petitioner-Company herein filed Petition Nos. 443,448,444 and 449 of 2014 under Section 11 of the Arbitration Act before the High Court of Delhi.Further, the High Court disposed of the petitions while holding that since one of the parties to the petition is an entity incorporated outside India, therefore, the arbitration of the dispute involving such an entity would be an International Commercial Arbitration within the meaning of Section 2(1)(f) of the Act.Further, it was held that for seeking appointment of an Arbitrator in a dispute involving such an entity, an application will have to be filed before the Supreme Court under Section 11(9) of the Act. Hence, the current Petition has been filed in accordance with the order dated 24.02.2015, of the High Court of Delhi.ISSUE BEFORE THE COURT:Whether there exists an Arbitration Agreement between the parties and if the answer is affirmative then whether the petitioner has made out a case for the appointment of Arbitrator?RATIO OF THE COURT:1.         On a careful perusal of Article-1 as well as Clause 3.14 of the concerned Contract dated 30.08.2010 along with the Letter of Indent dated 14.06.2010, the court held that the letter dated 14.06.2010 is a part of the Contract and it shall be read and construed as an integral part of the Contract. Therefore, the contention of the respondent-Company that there does not exist any arbitration agreement between the parties is not sustainable in the eyes of law. The court was view that Arbitration clause exists in the Contract and we hold this point in favour of the petitioner-CompanyThe court held that it is a cardinal principle of the Arbitration and Conciliation Act that the parties are free to decide the number of arbitrators, provided, it is an odd number, as well as the procedure for appointing them. However, if the parties are not able to agree on the said procedure, or constitute the Arbitral Tribunal to their mutual satisfaction, either of the party has an option to route to an appropriate remedy under Section 11 of the Act, which provides detailed machinery for appointment of Arbitrator through judicial intervention. DECISION HELD BY COURT:This court appointed Justice Amitava Roy, a former Judge of this Court, as the sole Arbitrator to adjudicate the disputes between the parties on such fees he may fix.The court further deemed the said appointment subject to the necessary disclosure being made under Section 12 of the Act and the Arbitrator not being ineligible under Section 12(5) of the Act.

IN THE CIVIL ORIGINAL JURISDICTION ARBITRATION CASENO. 53 OF 2016 IBI Consultancy India Private Limited …Petitioner(s …Respondent(s ARBITRATION CASENO. 63 OF 2016 ARBITRATION CASENO. 54 OF 2016 ARBITRATION CASENO. 57 OF 2016 JUDGMENT The IBI Consultancy India Private Limited the petitioner Company is the Indian subsidiary of the IBI Group based in Canada. The above petitions under Section 11(6 read with Section 11(9) of the Arbitration and Conciliation Act 1996have been filed by the petitioner Company as well as by the IBI Group for appointment of an Arbitrator to adjudicate the disputes that have arisen between the parties in connection with the contracts in question. The petitioner Company has filed two petitions for the appointment of Arbitrator and its parent company viz. IBI Group has also filed two petitions of the same nature. Since the point of consideration is same in all these four petitions purpose would be served if we moot the case of either of the petition and would be disposed off by this common judgment Arbitration Case No. 516 The petitioner Company is a multi disciplinary company engaged in the business of providing system integration and maintenance service for Toll and Traffic Management Systems whereas the DSC Limited the respondent Company is a Company registered under the Companies Act 1956 having two subsidiary companies. First subsidiary Company of the respondent Company is the Lucknow Sitapur Expressway Limitedwhich is a special purpose vehicleof the respondent Company and has signed a Concession Agreement with the National Highways Authority of India for developing Lucknow Sitapur Highway Project which is also a special purpose vehicle of the respondent Company and has signed a Concession Agreement with the NHAI for developing the Raipur Aurang Highway Projectfor widening the existing 2 lane Road to 4 Lane dual carriageway between Km 239 to Km 281 on NH 6 in the State of Chhattisgarh. Vide e mail dated 16.02.2010 the respondent Company sent a Request for Proposalto the petitioner Company inviting technical and commercial proposal for their LSEL and REL Projects Vide letter dated 07.06.2010 the petitioner Company had given a proposal to execute the contract for installation erection and commissioning of the Toll Collection and Traffic Control Equipments at NH 24. The respondent Company vide letter dated 14.06.2010 accepted the said proposal. Pursuant thereto a Contract Agreement dated 30.08.2010 was executed between the parties. The value of the Contract was mutually finalized at Rs 1 55 20 700.00 in pursuance of the Contract Agreement. In total the IBI group and the petitioner Company had entered into 6separate contracts for the respective LSEL and REL Projects with the respondent Company. During completion of the projects respondent Company defaulted in releasing the agreed payment to the petitioner Company and the IBI Group Though several verbal and written communication were exchanged between the parties to this effect the respondent Company could not release the outstanding payment. On 06.09.2012 a legal notice was sent to the respondent Company by the IBI Group as well as by the petitioner Company for the recovery of outstanding payment for all the contracts. Further on 12.06.2013 a reminder for outstanding payment was sent to the respondent Company. On 24.04.2014 a legal notice for invoking Arbitration Clause and appointment of Arbitrators was sent to the respondent Company and the name of Mr. Debashish Moitra Advocate was suggested as a Sole Arbitrator however there was no reply from the other side. The IBI Group and the petitioner herein filed petitions under Section 11 of the Act before the High Court being Arbitration Petition Nos. 443 448 444 and 4414 before the High Court of Delhi at New Delhi. Learned single Judge of the High Court vide order dated 24.02.2015 disposed of the petitions while holding that since one of the parties to the petition is an entity incorporated outside India therefore the arbitration of the dispute involving such an entity would be an ‘international commercial arbitration’ within the meaning of Section 2(1)(f) of the Act and for seeking appointment of an Arbitrator in a dispute involving such an entity an application will have to be filed before the Supreme Court under Section 11(9) of the Act. The petitioners herein have therefore invoked the jurisdiction of this Court by filing the above petitions. The first and the foremost thing is the existence of an arbitration agreement between the parties to the petition under Section 11 of the Act and the existence of dispute(s) to be referred to Arbitrator is condition precedent for appointing an Arbitrator under Section 11 of the Act. It is also a well settled law that while deciding the question of appointment of Arbitrator court has not to touch the merits of the case as it may cause prejudice to the case of the parties. The scope under Section 11(6) read with Section 11(9) is very limited to the extent of appointment of Arbitrator. This Court has to see whether there exists an Arbitration Agreement between the parties and if the answer is affirmative then whether the petitioner has made out a case for the appointment of It is worth mentioning that the position after the insertion of sub Section 6(A) of Section 11 of the Act dated 23.10.2015 has been changed. The extent of examination is now confined only to the existence of the Arbitration Agreement. At this juncture it is pertinent to set out Article 1 as well as Clause 3.14 of the Contract Agreement dated 30.08.2010 which are as under: “Article 1 The following document shall constitute the Contract between the client and the contractor and each shall be read and construed as an integral part of the Contract i) This Contract Agreement and Appendices hereto ii) Letter or indent ref no. No LSEL Tolling IBI HO 2 dated 14th June 2010…..” “Clause 3.14 ArbitrationAccordingly Justice Amitava Roy a former Judge of this Court is appointed as the sole Arbitrator to adjudicate the disputes between the parties on such fees he may fix Nevertheless to say the said appointment is subject to the necessary disclosure being made under Section 12 of the Act and the Arbitrator not being ineligible under Section 12(5) of the Act. 12) The petitions as well as interlocutory application if any are disposed of accordingly …. …J. ….... …J. NEW DELHI APRIL 16 2018.

Under Section 125 Cr.P.C. any order passed by compromise or otherwise cannot prevent the remedy stated under Section 18 of HAMA: High Court Of Chhattisgarh

Maintenance application decided under one statute would not foreclose the claim for maintenance under a different statute. Such an opinion was held by The Hon’ble High Court of Chhattisgarh before The Hon’ble Shri Justice P. Sam Koshy and The Hon’ble Smt. Justice Rajani Dubey in the matter of Chandrabhushan Vs. Smt. Savita Bai [FAM No. 03 of 2017].  The facts of the case were related to an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the judgment passed by the Family Court, Rajnandgaon dated 08.12.2016. According to the said judgment, the Court below had directed the appellant-defendant to pay an amount of Rs.3000/- per month to the respondent-plaintiff under Section 18 of the Hindu Adoption and Maintenance Act, 1956. The appellant contended that the application under Section 125 CrPC moved by the respondent-Plaintiff before the Family Court was ignored in the said order and as the said application of her was already rejected so the next application under another enactment for the same relief was not to be entertained.  The primary ground for the instant appeal was if the subsequent application for maintenance under a different statute was to be allowed entertained and allowed by the court below. For reference, the case of Rajnesh Vs. Neha and Another, 2021(2)SCC 324 was submitted wherein The Hon’ble Supreme Court considered all the provisions of law that provided for claiming maintenance under different statutes and stated that the remedy so prescribed ought to be exercised rather than to create multiple channels of remedy seeking maintenance.  After hearing all facts and submissions, The Hon’ble Court held that “Given the authoritative decision by the Supreme Court in the above-referred judgment, the ground raised for the appellant in assailing the impugned judgment herein would not stand and the appeal thus deserves to be and is accordingly rejected in the light of the judgment of Supreme Court in case of Rajnesh (Supra). Given the authoritative decision by the Supreme Court in the above-referred judgment, the ground raised for the appellant in assailing the impugned judgment herein would not stand and the appeal thus deserves to be and is accordingly rejected in the light of the judgment of Supreme Court in case of Rajnesh (Supra).” Therefore, the appeal stands rejected.

1 AFRHIGH COURT OF CHHATTISGARH AT BILASPURFAM No. 017Chandrabhushan S o Krishna Kumar aged about 32 years R o villagePrakashpur Tehsil and Police Station Khairagarh District Rajnandgaon Chhattisgarh. Appellant(s)VersusSmt. Savita Bai W o Chandrabhushan aged about 28 years at present R oVillage Kahjri Tehsil Khairagarh District Rajnandgaon Chhattisgarh. Respondent(s)For Appellant:Shri Rakesh Pandey Advocate. For Respondent:Shri G.P. Kurre Advocate. Hon ble Shri Justice P. Sam KoshyHon ble Smt. Justice Rajani Dubey JJ.Judgment on BoardPer P. Sam Koshy Judge11.11.20211.Aggrieved by the judgment dated 08.12.2016 passed by the Family Court Rajnandgaon in Civil Suit No.26 A 2010 the present appeal under Section19(1) of the Family Courts Act 1984has beenfiled. Vide the impugned judgment the court below has allowed anapplication under Section 18 of the Hindu Adoption and Maintenance Act 1956to the extent of directing the appellant Defendant to pay an amount of Rs.3000 per month to the respondent Plaintiff in this case. 2.The substantial ground which the appellant has raised principally is that thesaid order is ignoring the fact that on an earlier occasion the applicationunder Section 125 CrPC moved by the respondent Plainitff before theFamily Court at Rajnandgaon stood rejected vide order dated 22.08.2008in Misc. Criminal Case No.1 2008 and since her application under Section 2 125 CrPC was already rejected the subsequent application under anotherenactment for the same relief should not had been entertained. 3.The principal ground of challenge in the present appeal is as to whether thesubsequent application for maintenance under a different statute would hadbeen entertained and allowed by the court below. 4.There is a recent judgment of the Hon ble Supreme Court in this regard incase of Rajnesh Vs. Neha and Another 2021(2)SCC 324 wherein afterconsidering all the provisions of law which provides for claimingmaintenance under different different statutes the Supreme Court decidingon the question of overlapping jurisdiction in paragraphs 52 to 61 has heldas under:“52. Some High Courts have taken the view that since eachproceeding is distinct and independent of the other maintenancegranted in one proceeding cannot be adjusted or set off in the other.For instance in Ashok Singh Pal v Manjulata the Madhya PradeshHigh Court held that the remedies available to an aggrieved personunder S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In anapplication filed by the husband for adjustment of the amountsawarded in the two proceedings it was held that the question as towhether adjustment is to be granted is a matter of judicial discretionto be exercised by the Court. There is nothing to suggest as a thumbrule which lays down as a mandatory requirement that adjustment ordeduction of maintenance awarded u S. 125 Cr.P.C. must be off setfrom the amount awarded under S.24 of the HMA or vice versa. Asimilar view was taken by another single judge of the MadhyaPradesh High Court in Mohan Swaroop Chauhan v Mohini. Similarly the Calcutta High Court in Sujit Adhikari v Tulika Adhikari held thatadjustment is not a rule. It was held that the quantum ofmaintenance determined by the Court under HMA is required to beadded to the quantum of maintenance u S. 125 Cr.P.C. 53. A similar view has been taken in Chandra Mohan Das v TapatiDas wherein a challenge was made on the point that the Courtought to have adjusted the amount awarded in a proceeding underS.125 Cr.P.C. while determining the maintenance to be awardedunder S.24 of the HMA 1955. It was held that the quantum ofmaintenance determined under S.24 of HMA was to be paid inaddition to the maintenance awarded in a proceeding under S.125Cr.P.C. 54. On the other hand the Bombay and Delhi High Courts haveheld that in case of parallel proceedings adjustment or set off musttake place. The Bombay High Court in a well reasoned judgmentdelivered in Vishal v Aparna has taken the correct view. The Courtwas considering the issue whether interim monthly maintenance 3 awarded under Section 23 r.w. Section 20of the D.V. Act couldbe adjusted against the maintenance awarded under Section 125Cr.P.C. The Family Court held that the order passed under the D.V.Act and the Cr.P.C. were both independent proceedings andadjustment was not permissible. The Bombay High Court set asidethe judgment of the Family Court and held that Section 20(1)(d) ofthe D.V. Act makes it clear that the maintenance granted under thisAct would be in addition to an order of maintenance under Section125 Cr.P.C. and any other law for the time being in force. Sub sectionof Section 26 of the D.V. Act enjoins upon the aggrievedperson to inform the Magistrate if she has obtained any reliefavailable under Sections 18 19 20 21 and 22 in any other legalproceeding filed by her whether before a Civil Court Family Court or Criminal Court. The object being that while granting relief underthe D.V. Act the Magistrate shall take into account and consider ifany similar relief has been obtained by the aggrieved person. Eventhough proceedings under the D.V. Act may be an independentproceeding the Magistrate cannot ignore the maintenance awardedin any other legal proceedings while determining whether over andabove the maintenance already awarded any further amount wasrequired to be granted for reasons to be recorded in writing. TheCourt observed : “18. What I intend to emphasize is the fact that theadjustment is permissible and the adjustment can beallowed of the lower amount against the higher amount.Though the wife can simultaneously claim maintenanceunder the different enactments it does not in any waymean that the husband can be made liable to pay themaintenance awarded in each of the said proceedings.” It was held that while determining the quantum of maintenanceawarded u S.125 Cr.P.C. the Magistrate would take intoconsideration the interim maintenance awarded to the aggrievedwoman under the D.V. Act. 55. The issue of overlapping jurisdictions under the HMA and D.V.Act or Cr.P.C. came up for consideration before a division bench ofthe Delhi High Court in RD v BD wherein the Court held thatmaintenance granted to an aggrieved person under the D.V. Act would be in addition to an order of maintenance u S. 125 Cr.P.C. orunder the HMA. The legislative mandate envisages grant ofmaintenance to the wife under various statutes. It was not theintention of the legislature that once an order is passed in either ofthe maintenance proceedings the order would debar re adjudicationof the issue of maintenance in any other proceeding. In paragraphs16 and 17 of the judgment it was observed that :“16. A conjoint reading of the aforesaid Sections 20 26 and36 of DV Act would clearly establish that the provisions of DVAct dealing with maintenance are supplementary to theprovisions of other laws and therefore maintenance can begranted to the aggrieved personunder the DV Act whichwould also be in addition to any order of maintenance arisingout of Section 125 of Cr.P.C.17. On the converse if any order is passed by the FamilyCourt under Section 24 of HMA the same would not debarthe Court in the proceedings arising out of DV Act or 4 proceedings under Section 125 of Cr.P.C. instituted by thewife aggrieved person claiming maintenance. However itcannot be laid down as a proposition of law that once anorder of maintenance has been passed by any Court then thesame cannot be re adjudicated upon by any other Court. Thelegislative mandate envisages grant of maintenance to thewife under various statutes such as HMA Hindu Adoption andMaintenance Act 1956Section 125 of Cr.P.C. as well as Section 20 of DV Act. Assuch various statutes have been enacted to provide for themaintenance to the wife and it is nowhere the intention of thelegislature that once any order is passed in either of theproceedings the said order would debar re adjudication of theissue of maintenance in any other Court.”The Court held that u S. 20(1)(d) of the D.V. Act maintenanceawarded to the aggrieved woman under the D.V. is in addition to anorder of maintenance provided u S. 125 Cr.P.C. The grant ofmaintenance under the D.V. Act would not be a bar to seekmaintenance u S. 24 of HMA. 56. Similarly in Tanushree & Ors. v A.S.Moorthy the Delhi HighCourt was considering a case where the Magistrate’s Court had sinedie adjourned the proceedings u S. 125 Cr.P.C. on the ground thatparallel proceedings for maintenance under the D.V. Act werepending. In an appeal filed by the wife before the High Court it washeld that a reading of Section 20(1)(d) of the D.V. Act indicates thatwhile considering an application u S. 12 of the D.V. Act the Courtwould take into account an order of maintenance passed u S. 125Cr.P.C. or any other law for the time being in force. The mere factthat two proceedings were initiated by a party would not imply thatone would have to be adjourned sine die. There is a distinction in thescope and power exercised by the Magistrate under S.125 Cr.P.C.and the D.V. Act. With respect to the overlap in both statutes theCourt held :“5. Reading of Section 20(1)(d) of the D.V. Act further showsthat the two proceedings are independent of each other andhave different scope though there is an overlap. Insofar asthe overlap is concerned law has catered for that eventualityand laid down that at the time of consideration of anapplication for grant of maintenance under Section 12 of theD.V. Act the maintenance fixed under Section 125 Cr.P.C.shall be taken into account.” 57. The issue whether maintenance u S. 125 Cr.P.C. could beawarded by the Magistrate after permanent alimony was granted tothe wife in the divorce proceedings came up for considerationbefore the Supreme Court in Rakesh Malhotra v Krishna Malhotra.The Court held that once an order for permanent alimony waspassed the same could be modified by the same court by exercisingits power u S. 25(2) of HMA. The Court held that : “16. Since the Parliament has empowered the Court UnderSection 25(2) of the Act and kept a remedy intact and madeavailable to the concerned party seeking modification thelogical sequitur would be that the remedy so prescribed ought 5 to be exercised rather than creating multiple channels ofremedy seeking maintenance. One can understand thesituation where considering the exigencies of the situationand urgency in the matter a wife initially prefers anapplication Under Section 125 of the Code to securemaintenance in order to sustain herself. In such matters thewife would certainly be entitled to have a full fledgedadjudication in the form of any challenge raised before aCompetent Court either under the Act Or similar suchenactments. But the reverse cannot be the accepted norm.” The Court directed that the application u S. 125 Cr.P.C. be treatedas an application u S. 25(2) of HMA and be disposed of accordingly. 58. In Nagendrappa Natikar v Neelamma this Court considered acase where the wife instituted a suit under Section 18 of HAMA after signing a consent letter in proceedings u S. 125 Cr.P.C. statingthat she would not make any further claims for maintenance againstthe husband. It was held that the proceedings u S. 125 Cr.P.C. weresummary in nature and were intended to provide a speedy remedyto the wife. Any order passed u S. 125 Cr.P.C. by compromise orotherwise would not foreclose the remedy u S. 18 of HAMA. 59. In Sudeep Chaudhary v Radha Chaudhary the Supreme Courtdirected adjustment in a case where the wife had filed an applicationunder Section 125 of the Cr.P.C. and under HMA. In the S. 125proceedings she had obtained an order of maintenance.Subsequently in proceedings under the HMA the wife soughtalimony. Since the husband failed to pay maintenance awarded thewife initiated recovery proceedings. The Supreme Court held thatthe maintenance awarded under Section 125 Cr.P.C. must beadjusted against the amount awarded in the matrimonialproceedings under HMA and was not to be given over and abovethe same. Directions on overlapping jurisdictions 60. It is well settled that a wife can make a claim for maintenanceunder different statutes. For instance there is no bar to seekmaintenance both under the D.V. Act and Section 125 of the Cr.P.C. or under H.M.A. It would however be inequitable to direct thehusband to pay maintenance under each of the proceedings independent of the relief granted in a previous proceeding. Ifmaintenance is awarded to the wife in a previously institutedproceeding she is under a legal obligation to disclose the same in asubsequent proceeding for maintenance which may be filed underanother enactment. While deciding the quantum of maintenance inthe subsequent proceeding the civil court family court shall take intoaccount the maintenance awarded in any previously institutedproceeding and determine the maintenance payable to the claimant.61.To overcome the issue of overlapping jurisdiction and avoidconflicting orders being passed in different proceedings we directthat in a subsequent maintenance proceeding the applicant shalldisclose the previous maintenance proceeding and the orderspassed therein so that the Court would take into consideration the 6 maintenance already awarded in the previous proceeding and grantan adjustment or set off of the said amount. If the order passed inthe previous proceeding requires any modification or variation theparty would be required to move the concerned court in the previousproceeding.”5.The Supreme Court vide the said judgment has in a very categorical termsheld that maintenance application decided under one statute would notforeclose the claim for maintenance under a different statute. The SupremeCourt has also gone to the extent that even in case if maintenance isawarded under one of the statutes that by itself would not preclude theclaimant from raising another claim application under a different statuteclaiming maintenance. The only rider provided by the Supreme Court isdisclosure of these facts in the subsequent proceedings and if required thecourt entertaining the application had to adjust and take into considerationthe amount of maintenance already awarded earlier under another statute. 6.Given the authoritative decision by the Supreme Court in the abovereferred judgment the ground raised for the appellant in assailing theimpugned judgment herein would not stand and the appeal thus deservesto be and is accordingly rejected in the light of the judgment of SupremeCourt in case of RajneshJudge Judgeinder

Article 14 is a positive concept and cannot be enforced in a negative manner on grounds of parity: High Court of Delhi

Article 14 of the Constitution of India is a positive concept and does not promote negative equality. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well and the same was upheld by High Court of Delhi through the learned bench led by Justice Manmohan in the case of KAMLESH KUMAR JHA vs. DIRECTORATE GENERAL BORDER ROADS AND ORS. [W.P.(C) 1306/2022] on 03.02.2022. The facts of the case are that the Petitioner is an Executive Engineer (Civil) in the Border Roads Organisation and is aggrieved by the non-grant of departmental permission to proceed on deputation to NHAI. The Petitioner applied for deputation to NHAI and forwarded a copy of his application to be processed by the Border Roads Organisation. According to the Petitioner, after receiving the consent of all senior officers, including the Additional Director General Border Roads, the Petitioner’s Application was forwarded to the Director General Border Roads, however, his application was rejected on the ground that the Border Roads Organisation intends to post the Petitioner to a high altitude area to fill vacant positions of Executive Engineers in the ongoing Border Roads Organisation projects. Present writ petition has been filed challenging the rejection letter and he seeks directions to the respondent to allow his application for deputation to the National Highways Authority of India on the ground of parity. The petitioner’s counsel stated that the he had already completed the pre-condition of two years’ service in the high altitude area, as mandated under clause 7 (k) of Standard Operating Procedure on Deputation. He had served three years and three months in high altitude area, five years in extremely hostile area, therefore, counsel contended that the petitioner satisfied the eligibility criteria for proceeding on deputation and denial of Departmental consent on the ground that Petitioner was to be posted to a high altitude area was erroneous. He pointed out that the similarly placed Officers, had appeared before the NHAI Interview Board without obtaining prior approval whereas the request of similarly placed officers had been acceded to in the past. Court was of the view that the organisational interest of Border Roads Organisation is of paramount importance and if the superior officers of the Border Roads Organisation are of the opinion that the Petitioner is a ‘Suitable Officer’ to be posted in a high altitude area, then the same calls for no interference in writ jurisdiction especially when the impugned decision is not perverse. The Court observed that, “Article 14 of the Constitution of India is a positive concept and does not promote negative equality. Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 1306 2022 & CM APPLs.3796 3797 2022 KAMLESH KUMAR JHA ..... Petitioner Through: Mr.Shreenath A.Khemka Advocate with Mr.Ganesh A.Khemka and Mr.Sumit Singh Advocates. Through: None. DIRECTORATE GENERAL BORDER ROADS AND ORS. HON BLE MR. J USTICE MANMOHAN HON BLE MR. J USTICE NAVIN CHAWLA Reserved On : 21st January 2022 Date of Decision : 03rd February 2022 ..... Respondents JUDGMENT MANMOHAN J Present writ petition has been filed challenging the rejection letter dated 18 th February 2021 and the show cause notice dated 10th January 2022. Petitioner also seeks directions to the respondent Border Roads Organisation to allow the Petitioner’s application for deputation to the National Highways Authority of Indiaon the ground of parity. In the writ petition it has been averred that the Petitioner is an Executive Engineer in the Border Roads Organisation and is aggrieved by the non grant of departmental permission to proceed on deputation to NHAI. It is further averred in the writ petition that the W.P.(C) 1306 2022 Petitioner had applied for deputation to NHAI on 1st December 2020 and had forwarded a copy of his application to be processed by the Border Roads Organisation. According to the Petitioner after receiving the consent of all senior officers including the Additional Director General Border Roads the Petitioner’s Application was forwarded to the Director General Border Roads however his application was rejected vide impugned letter dated 18th February 2021 on the ground that the Border Roads Organisation intends to post the Petitioner to a high altitude area to fill vacant positions of Executive Engineers in the ongoing Border Roads Organisation projects. ARGUMENTS ON BEHALF OF THE PETITIONER Learned counsel for the petitioner stated that the Petitioner had already completed the pre condition of two years service in the high altitude area as mandated under clause 7 of Standard Operating Procedure on Deputation. He emphasised that the Petitioner had served three years and three months in high altitude area five years in extremely hostile area and three years and ten months in Hard Hard Area in the Border Roads Organisation is in excess of the strength of Executive Engineer posts. In support of his contention he relied upon the sparability certificate issued by the Respondent itself. Thus according to him allowing the Petitioner to proceed on deputation would not lead to any deficiency in the cadre strength of Executive Engineers in W.P.(C) 1306 2022 Border Roads Organisation. Learned counsel for the Petitioner stated that it was not open to the Petitioner to withdraw his application for deputation and if the same was withdrawn it would be prejudicial to the interest of the petitioner. He pointed out that as per Clause 2 of the Important Instructions of the Advertisement floated by NHAI the applicants were barred from withdrawing their candidature. Learned counsel for the Petitioner stated that on 30th December 2021 and 4th January 2022 the Petitioner requested the Department to reconsider and allow the Petitioner’s application for deputation. He pointed out that rather than processing the Petitioner’s requests in accordance with the similarly placed Officers the Border Roads Organisation issued a show cause notice dated 10th January 2022 alleging that the Petitioner had appeared before the NHAI Interview Board on 19th April 2021 without obtaining prior approval whereas the request of similarly placed officers had been acceded to in the past. He pointed out that in the case of a similarly placed person i.e. Ram Asra Khural who was also an Executive Engineer in the Border Roads Organisation and had sought deputation to NHAI the Gauhati High Court in W.P.(C) 28020 had struck down high altitude area postings as a reason to deny permission for deputation given that many others had been granted permission to go on deputation. He stated that the decision of learned Single Judge in W.P.(C) 2804 of 2020 was confirmed by the Division Bench in The Union of India & Ors. v. Ram Asra Khural & Ors. W.A. 1821. W.P.(C) 1306 2022 He admitted that a Division Bench of this Court in the case of Shyam Singh & Ors. vs. Union of India & Ors. had rejected the claim for parity. However he emphasised that the sole ground for rejecting the candidature therein was that the petitioner therein had not completed minimum twenty years of service before seeking deputation. COURT’S REASONING AN EMPLOYEE OF THE BORDER ROADS ORGANISATION HAS NO FUNDAMENTAL RIGHT TO CLAIM A DEPUTATION TO ANY OTHER ORGANISATION OR DEPARTMENT LIKE NHAI. HE HAS ONLY A RIGHT OF FAIR CONSIDERATION IN ACCORDANCE WITH THE POLICY AND NEEDS OF THE ORGANISATION. This Court is of the view that an employee of Border Roads Organisation has to work primarily in the said Organisation. An employee of the Border Roads Organisation has no fundamental right to claim a deputation to any other Organisation or Department like NHAI. The employee has only a right of fair consideration in accordance with the policy and needs of the organisation. INTEREST OF THE ORGANISATIONAL ORGANISATION IS OF PARAMOUNT IMPORTANCE AND IF ITS SUPERIOR OFFICERS ARE OF THE OPINION THAT THE PETITIONER IS A ‘SUITABLE OFFICER’ TO BE POSTED IN A HIGH ALTITUDE AREA THEN THE COURT WOULD NOT SUBSTITUTE ITS OWN JUDGMENT FOR THE JUDGMENT OF THE MANAGEMENT. In the present case the Petitioner’s application for deputation has not been rejected by the Border Roads Organisation on the grounds that he did not satisfy the eligibility criteria for deputation or that if he proceeded on deputation there would be a deficiency in the cadre strength of Executive W.P.(C) 1306 2022 Engineers but on the ground “....that numerous posts of EE(Civ) have been lying vacant in Project Fmns located in HAA due to non availability of suitable officer. The officer has completed his cooling off period for posting to HAA and his next posting will be issued to HAA. Therefore due to Organizational interest request for deputation of the officer has not been granted to by the ‘Competent Authority”. 1306 2022 strength does not vest any right in any of the officers to claim permission to proceed on deputation. INVOCATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA IS NOT MADE OUT BY THE PETITIONER IN THE FACTS OF THE PRESENT CASE In the present case apart from asserting that 15(fifteen) officers have been allowed by the respondent BRO to proceed on deputation while the petitioner’s application has been rejected the petitioner has not provided the details of these officers or how his case for being allowed to proceed on deputation is superior to them. This court is not expected to indulge in a fishing and roving inquiry to determine the comparative merit and demerit of the cases of these officers especially in their absence. The plea based on Article 14 is completely vague and without any merit. In Ram Asra Khural supra) the Gauhati High Court has found that some of the officers to whom permission to proceed on deputation had been granted were not even eligible under the Respondent’s SOP for deputation. Based on such finding the learned Single Judge of the Gauhati High Court granted the relief to the petitioner therein. In the present petition it has not been asserted that any of the officers to whom permission to proceed on deputation has been granted is otherwise ineligible for the same. Consequently the ground of discrimination as made out in the case of Ram Asra Khural v. The Union of India & Ors. W.P.(C) 2804 of 2020 is not attracted to the facts of the present case. 15. Further with all due respect this Court is not in agreement with the view taken by Gauhati High Court. In fact the consistent view of this Court has been that Article 14 of the Constitution of India is a positive concept and W.P.(C) 1306 2022 does not promote negative equality. The Supreme Court in Union of India v. M.K. Sarkar 2 SCC 59 has held “Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others.” The Supreme Court in Basawaraj and Another Vs. Special Land Acquisition Officer 14 SCC 81 has also held “Article 14 does not envisage negative equality but has only a positive aspect. Thus if some other similarly situated persons have been granted some relief benefit inadvertently or by mistake such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case it cannot be perpetuated.” Even the Division Bench judgment of this Court relied upon by learned counsel for the petitioners in Shyam Singh & Ors. vs. Union of India & Orshas held that “... It is well settled that Article 14 is a positive concept and no direction can be issued on the plea of discrimination wherein the earlier decision itself was improper and wrong. In view of the above findings we find no merit in the present writ petition and other connected writ petitions and they are dismissed.” THE INTENT OF THE PETITIONER IN APPEARING BEFORE THE INTERVIEW BOARD WITHOUT PRIOR PERMISSION WAS TO ‘FORCE THE HAND’ OF THE RESPONDENT. 16. From the documents on record it is apparent that the Petitioner had applied for prior permission from the respondent Border Roads Organisation for appearing before the Interview Board. However despite non receipt of approval permission from Border Roads Organisation the Petitioner had gone ahead and appeared before the NHAI Interview Board. W.P.(C) 1306 2022 This Court is of the view that the intent of the Petitioner in appearing before the Interview Board without prior permission was to ‘force the hand’ of the respondent Border Roads Organisation. 17. This Court is also of the view that if the Petitioner had withdrawn his application he would have suffered no real prejudice as the only consequence of withdrawal of application is that Petitioner’s name would not be considered for deputation to NHAI for the next three years. In view of the Petitioner’s next posting to high altitude area it is highly unlikely that he would be in a position to apply for deputation to NHAI for the next three years. 18. For the aforesaid reasons the present writ petition along with pending applications being bereft of merits is dismissed. MANMOHAN J NAVIN CHAWLA J FEBRUARY 03 2022 W.P.(C) 1306 2022

The appellate court shall not interfere in the order of acquittal even if two plausible views arise on perusal of evidence: Allahabad High Court.

It is well-settled law that in any event when a High court is entertaining an appeal against the order of acquittal, it is in fact exercising its revisional jurisdiction and the High court should not interfere in the order unless strict material irregularity or omission of evidence and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take a stand to upset the judgment of the lower court. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Kaushal Jayendra Thaker & Hon’ble Justice Ajai Tyagi in the matter of State of U.P vs Anil Kumar Jaisal [GOVERNMENT APPEAL No. – 198 of 2020] on 23.10.2021. The facts of the case revolved around an alleged incident that occurred on the night of 06.02.2014. It was the contention of the petitioner that when she was alone and her children were asleep at around 09:00 PM the accused who was known to the family had entered into her house, closed the door from inside, and committed sexual intercourse against her will. The prosecutrix tried to lodge an FIR on 10.02.2014 but the police didn’t register the same, therefore on the same day she moved to the concerned Magisterial Court who directed investigation under Section 156 (3) of Cr.P.C. The First Information Report was lodged as 114 of 2014 on 21.3.2014. After examination of all the pieces of evidence, the learned Sessions Judge acquitted the accused. Thus, the current appeal was preferred. The Hon’ble High Court took into view the judgment of the Hon’ble Supreme Court in “M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR”, (2006) 6 S.C.C. 39 in which it was held that “ In any event, the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the Court below” The Hon’ble High Court referred to numerous other judgments of the Hon’ble Supreme Court in which similar views were upheld. Finally, the Hon’ble High Court there was no material irregularity in the order of the learned session Judge and the learned session Judge has appreciated all the evidence provided by the prosecutrix. Thus, the order dated 29.02.2020 is not liable to be set aside.

Court No. 37 Case : GOVERNMENT APPEAL No. 1920 Appellant : State of U.P Respondent : Anil Kumar Jaisal Counsel for Appellant : G.A Hon ble Dr. Kaushal Jayendra Thaker J Hon ble Ajai Tyagi J Per : Ajay Tyagi J Heard learned A.G.A. for the State and perused the record. This appeal under Section 378 of Code of Criminal Procedure 1973at the behest of the State has been preferred against the judgment and order dated 29.02.2020 passed by learned Additional Sessions Judge F.T.C. Varanasi acquitting accused respondent who have been tried for commission of offence under Sections 376 504 & 506 of Indian Penal Code 1860of Cr.P.C. The First Information Report was lodged as 1114 on 21.3.2014 The accused was nabbed and on 8.7.2015 the case was committed to the Court of Sessions. The prosecution examined about five witnesses. P.W.1 was the prosecutrix P.W.2 was Ram Lal Sub Inspector P.W.3 was Ramesh Yadav P.W.4 was Mohd. Alamgir P.W.5 was Dr. Sakshi Gupta who medically examined the prosecutrix The prosecution relied on eight documents which are sought to be proved by the oral testimony of the witnesses. After the prosecution evidence was completed the accused was put to question under Section 313 of Cr.P.C. and accept stating that he was falsely implicated and no such incident had occurred the accused did not lead any evidence nor he examined any witness. The learned Sessions Judge raised two points of determination namely whether the First Information Report was belated &6 S.C.C. 39 the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision the Apex Court has observed as under “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal the High Court should have borne in mind the well settled principles of law that where two view are possible the appellate Court should not interfere with the finding of acquittal recorded by the Court below.” 8. Further in the case of “CHANDRAPPA Vs. STATE OF KARNATAKA” reported in4 S.C.C. 415 the Apex Court laid down the following principles “42. From the above decisions in our considered view the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal 1] An appellate Court has full power to review re appreciate and reconsider the evidence upon which the order of acquittal is founded 2] The Code of Criminal Procedure 1973 puts no limitation restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on questions of fact and of law 3] Various expressions such as “substantial and compelling reasons” “good and sufficient grounds” “very strong circumstances” “distorted conclusions” “glaring mistakes” etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion 4] An appellate Court however must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly the accused having secured his acquittal the presumption of his innocence is further reinforced reaffirmed and strengthened by the trial Court 5] If two reasonable conclusions are possible on the basis of the evidence on record the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” Thus it is a settled principle that while exercising appellate powers even if two reasonable views conclusions are possible on the basis of the evidence on record the appellate Court should not disturb the finding of acquittal recorded by the trial Court Even in the case of “STATE OF GOA Vs. SANJAY THAKRAN & ANR.” reported in 3 S.C.C. 75 the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under “16. From the aforesaid decisions it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and therefore the decision is to be characterized as perverse. Merely because two views are possible the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court in such circumstances to re appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.” Similar principle has been laid down by the Apex Court in cases of “STATE OF UTTAR PRADESH VS. RAM VEER SINGH ORS.” 2007 A.I.R. S.C.W. 5553 and in “GIRJA PRASADSCC 749 the Apex Court in para 10 and 11 has held as under “10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.” Even in a recent decision of the Apex Court in the case of “MOOKKIAH AND ANR. VS. STATE REP. BY THE INSPECTOR OF POLICE TAMIL NADU” reported in AIR 2013 SC 321 the Apex Court in para 4 has held as under “4. It is not in dispute that the trial Court on appreciation of oral and documentary evidence led in by the prosecution and defence acquitted the accused in respect of the charges leveled against them. On appeal by the State the High Court by impugned order reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court even while dealing with an appeal against acquittal was also entitled and obliged as well to scan through and if need be reappreciate the entire evidence though while hoosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above where the matter of the extent and depth of consideration of the appeal is concerned no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.5 SCC 573]” It is also a settled legal position that in acquittal appeals the appellate Court is not required to rewrite the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of “STATE OF KARNATAKA VS. HEMAREDDY” AIR 1981 SC 1417 wherein it is held as under “...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal will ordinarily 15. In a recent decision the Hon’ble Apex Court in “SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA” JT 2013SC 66 has held as under “That appellate Court is empowered to reappreciate the entire evidence though certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.” Further in the case of “STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA” 14 SCC 153 the Apex Court has held as under “The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act by bringing on record evidence either direct or circumstantial to establish with reasonable probability that the money was accepted by him other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act the court is required to consider the explanation offered by the accused if any only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However before the accused is called upon to explain how the amount in question was found in his possession the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case the court may look for independent corroboration before convincing the accused The Apex Court recently in Jayaswamy vs. State of Karnataka 2018) 7 SCC 219 has laid down the principles for laying down the powers of appellate court in re appreciating the evidence in a case where the State has preferred an appeal against acquittal which read as follows 10.It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court s acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court s conclusion with regard to the facts is palpably wrong if the Trial Court s decision was based on erroneous view of law if the Trial Court s judgment is likely to result in grave miscarriage of justice if the entire approach of the Trial Court in dealing with the evidence was patently illegal if the Trial Court judgment was manifestly unjust and unreasonable and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors. 2003) 12 SCC 606 which reads thus 21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored a duty is cast upon the appellate court to re appreciate the evidence in a case where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat 14 SC 750 has held that the appellate court is reversing the trial court’s order of acquittal it should give proper weight and consideration to the presumption of innocence in favour of accused and to the principle that such a presumption sands reinforced reaffirmed and strengthened by the trial court and in Samsul Haque v State of Assam 18 SCC 161 held that judgment of acquittal where two views are possible should not be set aside even if view formed by appellate court may be a more probable one interference with acquittal can only be justified when it is based on a perverse 19. We have scrutinized the evidence as read by Sri N.K Srivastava learned A.G.A. appearing for the State who has taken us through the entire record. The whole testimony of the prosecutrix has been threadbare discussed by the learned Sessions Judge. While going through the deposition of the prosecutrix the settled legal position of law is that she cannot be treated to be accomplish and her evidence is to be seen with non microscopic eyes. The learned Sessions Judge has threadbare discussed that the F.I.R. was not only belated but it was highly belated namely the incident took place on 6.2.2014 and the F.I.R. was lodged on 21.3.2014. Even if we did not agree with the learned Sessions Judge on this aspect the second aspect would be more important for our purpose. The learned Sessions Judge has considered the the decisions in Ravindra Mahto Vs. State of Jharkhand 2006ACC 543& Ravi Kumar Vs. State of Punjab 2005ACJ 505. Learned Sessions Judge has very categorically come to the conclusion that there was no rape committed by the accused. The testimony of prosecutrix has not been believed by the learned Sessions Judge. It can be said that when the door was open the accused was there for 20 25 minutes and her children were there she could have started shouting. When the accused is said to have removed his trousers and went to bathroom that time also she could have raised alarm but the same was not raised. The medical evidence goes to show that there was no internal injuries. The spermatozoa which belong to the accused was not present in the vaginal swab. Had it been a rape some internal injuries could have possible. 22. Hence in view of the matter & on the contours of the judgment of the Apex Court we have no other option but to concur with the learned Sessions Judge. The appeal sans merits and is dismissed. The record and proceedings be sent back to the Tribunal. 23. We are thankful to Sri N.K. Srivastva learned A.G.A. for ably assisting the Court. Order Date : 23.10.2021

The court rejected 2nd attempt for bail as there was sufficient evidence that the petitioner was involved in the disappearance of the victim: High Court of Patna

The petitioner was arrested under Sections 302 IPC, “Punishment for murder whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine”, section 201, “Causing disappearance of evidence of the offence, or giving false information to screen offender”, section 120-B of the Indian Penal Code, “Punishment of criminal conspiracy”. The petition is in connection with Dhanaha PS Case No. 10 of 2019 dated 12.01.2019. This is the second attempt for bail which was earlier rejected by judgment dated 24.08.2020 passed in Cr. Misc. No. 15350 of 2020. In the High Court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 15th of September 2021 in the case of Jifrul Haque Ansari @ Jafrul Ansari and others Versus the State of Bihar, [Criminal Miscellaneous No. 23410 of 2021] Mr Anil Kumar represented as the advocate for the petitioner, and Mr Anand Mohan Prasad represented the state of Bihar as the additional Public Prosecutor the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner along with five others was accused of killing the nephew of the informant and further they destroyed the evidence. The counsel representing the petitioner, held that the mobile number had not been mentioned in the FIR in which the sister of the petitioner made a call to the deceased. After investigation, the police found out the mobile number through which the calls to the deceased were made and the number does not belong to the family of the petitioner. Therefore, there was no connection from the family of the petitioner to the deceased and they cannot be accused. Further, the counsel held that this case has been falsely implicated as only after 7 days of the crime the complaint was filed and they failed to approach the police. Even though the documents annexed indicate the informant approached the police but the same appeared to be manipulated documents. The counsel further held that even the villagers of the deceased stated that the nephew of the informant died from a road accident and was also buried. Since the family had a past ligation history the case was registered. There was no independent witness who claimed that the deceased came into the petitioner’s house on a fateful day. The additional public prosecutor was ordered by the court to obtain a report from the Superintendent of Police, Bagaha. To figure out the mobile number from which the call was made on the phone of the deceased and the location of the calls as also to whom the said SIM belongs. The court further directed the APP to make an enquiry throughout the village of the informant regarding the death of the nephew of the informant whether it was a road accident or otherwise. The APP obtained a report from the Superintendent of Police which stated that the mobile number was similar to that of the accused but the SIM was registered in the name of the victim. During the enquiry, it was transpired that the accused and the victim was having a love affair and they spoke frequently. Therefore, this crime was not due to a road accident but clearly due to murder by the petitioner.  While tracing the SIM, it was conceded that the victim and the petitioner were at the same place. The victim’s SIM was traceless after a point of time and therefore they were unable to recover the body. The Honourable Court concluded that “There is sufficient indication to indicate that the petitioner may also be involved in the disappearance of the victim, who has neither been recovered nor his body found, and further, the Court also does not find any mitigating circumstances after the last order of rejection dated 24.08.2020 for granting bail to the petitioner. Therefore, the petition stands dismissed.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 234121 Arising Out of PS. Case No. 10 Year 2019 Thana DHANAHA District West Champaran Jifrul Haque Ansari @ Jafrul Ansari @ Jayfirul Haque Ansari @ Jayfirul Ansari aged about 26 years Male Son of Mustafa Ansari Resident of Village Khalwa Patti Kathar Tola Police Station Dhanha District West The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Anil Kumar Advocate Mr. Anand Mohan Prasad Mehta APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Anil Kumar learned counsel for the petitioner and Mr. Anand Mohan Prasad Mehta learned Additional Public Prosecutor for the State 3. The petitioner is in custody in connection with Dhanaha PS Case No. 10 of 2019 dated 12.01.2019 instituted under Sections 302 201 120 B of the Indian Penal Code 4. This is the second attempt for bail by the petitioner as earlier such prayer was rejected by judgment dated 24.08.2020 passed in Cr. Misc. No. 153520 Patna High Court CR. MISC. No.234121 dt.15 09 2021 5. The allegation against the petitioner and five others is of killing the nephew of the informant and then destroying the 6. Learned counsel for the petitioner having reiterated the arguments advanced in the earlier case as has been noted in judgment dated 24.08.2020 had added that the FIR does not disclose as to from which mobile number the sister of the petitioner had made a call to the deceased. It was submitted that as per the police investigation it is alleged that the calls to the deceased were made from mobile number 8271722257 which does not belong to the family of the petitioner. Thus learned counsel submitted that there is nothing to connect the petitioner or his family to the deceased. Further it was submitted that the whole case has been falsely instituted which would be clear from the fact that initially after 7 days of the occurrence the complaint was filed without the informant approaching the police. It was submitted that though in the complaint two documents are annexed which purportedly indicate that complainant had given information to the police on 03.01.2019 and 08.01.2019 but the same ex facie appear to be manipulated documents inasmuch as in one of the petitions which has been given as 03.01.2019 it is apparent that the date was 09.01.2019 which has been overwritten Patna High Court CR. MISC. No.234121 dt.15 09 2021 as 03.01.2019. It was submitted that this would be relevant as the date of the complaint itself is 09.01.2019 and on the same day both those antedated documents were created to show that previously the police were informed about the incident but clearly the same is not a fact. Further it was submitted that as per the information available with the petitioner side the villagers of the deceased are aware of the fact that he had died due to road accident and was also buried but only at the instigation of one Jai Prakash Lal Shrivastava with whom the family of the petitioner has past litigation history this false case has been registered. It was submitted that the submission of learned counsel for the informant as has been noted in the order dated 24.08.2020 to the effect that the independent witnesses have seen the deceased coming with the petitioner to their house on the fateful date is not correct as no independent witness has come forward to state the same 7. On the aforesaid submissions of learned counsel for the petitioner the Court had asked learned APP to obtain a report from the Superintendent of Police Bagaha specifically with regard to the mobile number from which the call was made on the phone of the deceased and the location of the calls as also to whom the said SIM belongs. He was further directed to get Patna High Court CR. MISC. No.234121 dt.15 09 2021 a thorough enquiry conducted at the village of the informant from independent sources with regard to whether there is indication that the deceased has been buried by his family including the informant after having died in a road accident 8. Learned APP submitted that the report has been submitted which has also been forwarded to the Court. The Court deems it appropriate to reproduce the said report “1. That by an order dated 11.08.2021 this Hon’ble Court was pleased to direct the Learned A.P.P. to get a report from the Superintendent of Police Bagaha and accordingly the present report is being submitted for kind consideration 2. That after the order of this Hon’ble Court an enquiry was directed to be carried out in the matter by the Superintendent of Police Bagaha through the Sub Divisional Police Officer Bagaha who has submitted his report dated 03.09.2021 Memo No. 1768 2021) after carrying out his 3. That as per the report Mobile No 8271722257 was used to make call on the mobile number 8788601830 used by the victim and this numberwas used by the accused Rukshana Khatoon @ Sana Khatoon for continuously contacting the victim but the SIM of 8271722257 was registered actually in the name of victimhimself. During local enquiry it has transpired that this accused and the victim were having love affair and the victim gave the SIM of above number to the accused secretly and they used to talk frequently 4. That from the CDR analysis of the mobile numbers above on these two numbers right from 27.12.2018 till 02.01.2019 there were constant talks of long duration Patna High Court CR. MISC. No.234121 dt.15 09 2021 Bashihiya Balbirpur 5. That on the date of incident i.e 02.01.2019 both the mobiles were in the same tower District location Kushinagar Uttar Pradesh where the second house of the accused Rukshana Khatoon @ Sana Khatun and her family is situated. It shows that the victim was also at Bashihiya Balbirpur Uttar Pradesh and after 19.43.47 hrs. on 02.01.2019 Mobile no 8788601830 of the victim is off and since thereafter the victim is traceless 6. That as per the report the tower location of mobile number used by the victimaccused Rukshana Khatoon @ Sana Khatoon accused Mustafa Ansari accused Jafrul Ansarithey all were at the same location on 02.01.2019 i.e. at Village: Bashihiya Banbirpur P.S Padraunia District: Kushinagar Uttar Pradesh which shows that they all were together 7. That it has also been reported that the mobile number used by the victim i.e. 8788601830 was given to him by his brother namely Sohrab Alam Bablu Ansari who worked in Mumbai and since he was not getting a SIM due to address related issue he got this number through his friend namely Hafij Sakur Ansari which was initially used by Sohrab Alam @ Bablu Ansari however upon his return from Mumbai he gave it to the victim who was since thereafter using it till his disappearance 8. That it has also been reported that till date the dead body of the victim could not be 9. That it has also been reported that it is not a case of death in accident as per the local enquiry at the village of the informant situated at Tamkuhwaha P.S. Dhanha and in this regard various villagers of the informant were contacted 10. That the petitioner is a named accused along with various others and the informant is the uncle of the victim 11. That during investigation the case has been found true under Sections 364 34 of the IPC against six accused persons including this petitioner 12. That in the above background the present report is being submitted.” Patna High Court CR. MISC. No.234121 dt.15 09 2021 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that there is sufficient indication to indicate that the petitioner may also be involved in the disappearance of the victim who has neither been recovered nor his body found and further the Court also does not find any mitigating circumstances after the last order of rejection dated 24.08.2020 for granting bail to the 10. In the aforesaid background the petition stands (Ahsanuddin Amanullah J

The Court is not inclined to grant pre-arrest bail to the petitioner as she was arrested under Sections 498A, 304B,120/34IPC: High court of Patna

The petitioner in connection with Maner PS Case No. 589 of 2016 dated 30.12.2016, was arrested under section 498A Indian Penal Code, “Husband or relative of husband of a woman subjecting her to cruelty.” section 304B, “Dowry death”, section 120, “Concealing design to commit an offense punishable with impris­onment”, and section 34 IPC, “Acts done by several persons in furtherance of common intention.” This judgment was given in the high court of Judicature at Patna on the 27th of July 2021 by the Honorable Mr. Justice Ahsanuddin Amanullah in the case of Arti Kumari v/s state of Bihar criminal miscellaneous No. 35586 of 2020, Mr. Krishna Singh represented as the senior advocate for the petitioner and Mr. Satya represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through video conference. The following are the facts of the case, the petitioner and her family members have been accused of killing her sister-in-law and her three minor children, the petitioner is reportedly the sister of the husband of the deceased, there has been an allegation of the brutal murder of putting them on fire. According to the counsel for the petitioner, he held that such allegations are false because the facts that three minor children were murdered show that the family members have not played a role in the same as they are the children of her own brother, even though there have been some disputes with the sister of the informant there was no enmity with the minor children since there was some dispute between the couple, the counsel claimed that the sister of the informant (now deceased) committed suicide with her three children in the fit of anger, the counsel held that the husband of the deceased has been given bail after being custody and also the father in law of the deceased has been released on anticipatory bail by the bench of the high court, the petitioner has no criminal antecedent. The additional public prosecutor held that the body of the two children and the mother was fished out from the river and the body of the third child is yet to be recovered and based on the post-mortem, it showed that the death was due to burns he also held that the place of the incident took place on a bed where the deceased was burnt to death and the body was thrown into the river to destroy evidence, witnessed has also supported the prosecution version and the petitioner lived in the house because she was unmarried and various other circumstances prove that the petitioner was involved in the heinous crime.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 355820 Arising Out of PS. Case No. 589 Year 2016 Thana MANER District Patna Arti Kumari aged about 22 years Female Daughter of Sri Rajeshwar Rai Resident of Village Jivrakhan Tola Goraiya Asthan PS Maner District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Krishna Prasad Singh Senior Advocate with Mr. Sunil Kumar Singh Advocate Mr. Satya Nand Shukla APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 27 07 2021 The matter has been heard via video conferencing 2. Heard Mr. Krishna Prasad Singh learned Senior counsel assisted by Mr. Sunil Kumar Singh learned counsel for the petitioner and Mr. Satya Nand Shukla learned Additional Public Prosecutor for the 3. The petitioner apprehends arrest in connection with Maner PS Case No. 589 of 2016 dated 30.12.2016 instituted under Sections 498A 304B and 120 34 of the Indian Penal 4. The allegation against the petitioner who is the unmarried sister of the husband of the deceased and her other Patna High Court CR. MISC. No.355820 dt.27 07 2021 family members is of killing the deceased and her three minor children by putting them on fire 5. Learned counsel for the petitioner submitted that besides being the unmarried sister the fact that three minor children were also killed goes to show that there could not have been any role of the family members as they may have had differences with the sister of the informant but there could not have been any dispute or enmity with the minor children of her brother. It was submitted that due to dispute between the couple the sister of the informant had committed suicide along with her three children in a fit of rage. Learned counsel submitted that the husband has also been enlarged on bail after spending some time in custody. It was submitted that the father of the petitioner who was the father in law of the deceased Rajeshwar Rai has been granted anticipatory bail by a co ordinate Bench of this Court by order dated 03.03.2020 in Cr. Misc. No 90020. It was submitted that the petitioner besides being a lady has no criminal antecedent 6. Learned APP from the case diary submitted that the body of two children and the skeleton of the lady were fished out from the river whereas the body of the third child has not been recovered and the postmortem shows that death was due to Patna High Court CR. MISC. No.355820 dt.27 07 2021 burning. It was further submitted that at the place of occurrence a bed has been found on which the deceased were burnt to death and thereafter the body was thrown in the river to destroy the evidence. It was submitted that witnesses have supported the prosecution version and the petitioner was in the house as she was unmarried when such incident happened and most importantly the father of the petitioner was granted bail on the ground that he was made accused only after ten months. However the petitioner though not specifically named in the FIR which states about a sister of the husband of the deceased but obviously refers to her as she was the only sister living in the matrimonial house of the deceased and the circumstances also go to prove that the petitioner was involved in the heinous crime 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioner 8. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

Courts to take necessary steps to protect violent patients under the Mental Healthcare Act, 2017: Delhi High Court

The Mental Healthcare Act had been enacted so as to promote and protect the full rights of persons suffering from mental illness. The present petition of Kalyani Chattopadhayay v Govt. of NCT Delhi [W.P.(C) 4131/2021] pivoted around the issue of the violent acts by the petitioner’s son diagnosed with schizophrenia. The matter was adjudicated by the bench of Pratibha M. Singh J. The present petition has been filed by the petitioner seeking directions to be issued to AIIMS, SHO – Chitranjan Park and the IHBAS (`Institute of Human Behaviour and Allied Sciences) who are arrayed as respondent Nos. 2-4. The case of the Petitioner is that her son who is now 32 years of age had started showing abnormal behaviour since he was 17 years of age. In 2006 he was diagnosed at AIIMS with `Bipolar disorder and Psychosis’. He was being taken repeatedly to doctors and hospitals and since 2006 he was prescribed medications by doctors at AIIMS. In 2019 his symptoms aggravated, and he was again taken to AIIMS. He was then diagnosed with `Schizophrenia’. Owing to the son’s mental condition, he would get aggressive towards his parents and also exhibit violent behaviour. He is stated to have severely injured them on some occasion. The Petitioner also filed a complaint under Sections 101 and 102 of the Mental Health Care Act, 2017 as also under Section 156(3) of the CrPC, which was dismissed however. It was prayed by the petitioners that examining the legality and validity of the same direct the Respondent No. ‘s 2 and 4 to provide medical treatment to the Petitioner’s son. Further, it was also pleaded to provide adequate police protection/assistance to the doctors at the Respondent No. ‘s 2 and 4 hospital in rendering medical treatment to the Petitioner’s son. The court preliminary required an examination report by AIIMS to assess the condition of the petitioner’s son wherein it was recorded that there was history of recent violent behaviour. He was not cooperative and appeared aggressive. A provisional diagnosis of schizophrenia was made. Thus it was clear that the Petitioner has been again diagnosed with schizophrenia and was admitted in the Psychiatry Ward of AIIMS. He was administered medicines and kept in the emergency. However, he left the Emergency without an intimation or information. The bench noted there was an urgent need to ensure that the safety of the Petitioner and also to safeguard them. The son of the Petitioner also required urgent medical attention. For the said purpose, the son of the Petitioner needed to be placed under proper care and treatment, in order to ensure that he does not cause any further physical or mental damage to either of his parents, and also to ensure that his own mental condition improves. The court was convinced that the son of the petitioner was unable to take care of himself. In the previous hearings, the petitioner herself had appeared and also made submissions. Both the petitioner and her husband are senior citizens. Their safety and security was of concern to the court.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 7th May 2021 W.P.(C) 4131 2021 & CM APPL.12566 2021 KALYANI CHATTOPADHAYAY Through: Mr. Akhil Sachar and Ms. Sunanda Tulsyan Advocates.Petitioner GOVT. OF NCT OF DELHI & ORS. ..... Respondents Through: Mr. Anupam Srivastava ASC Mr. Satya Ranjan Swain Sr. Panel Counsel with Mr. Kautilya Birat R 2 AIIMS. Mr. Tushar Sannu Standing Counsel IHBAS with Ms. Ankita Bhadouriya and Mr. Shubham Jain Advocates with Dr. Amit Khanna IHBAS in person. Mr. Rajesh Mahna Standing Counsel for VIMHANS. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done through video conferencing. 2. The present petition has been filed by the Petitioner seeking directions to be issued to AIIMS SHO Chitranjan Park and the IHBASwho are arrayed as Respondent Nos. 2 4. The case of the Petitioner is that her son who is now 32 years of age had started showing abnormal behaviour since he was 17 years of age. In 2006 he was diagnosed at AIIMS with `Bipolar disorder and Psychosis’. He was W.P.(C) 4131 2021 being taken repeatedly to doctors and hospitals and since 2006 he was prescribed medications by doctors at AIIMS. In 2019 his symptoms aggravated and he was again taken to AIIMS. He was then diagnosed with Schizophrenia’. Owing to the son’s mental condition he would get aggressive towards his parents and also exhibit violent behaviour. He is stated to have severely injured them on some occasions. In July 2020 the Petitioner’s husband had to get a hip surgery in 2020 owing to the son’s violent behaviour. In August 2020 the Petitioner was assaulted by her son. His behaviour was reported by the Petitioner to the SHO of the concerned area. The Petitioner also filed a complaint under Sections 101 and 102 of the Mental Health Care Act 2017 as also under Section 156(3) of the CrPC which was dismissed on 16th January 2021. A revision petition was preferred challenging the said order which was also dismissed on 23rd January 2021. In view of the mental condition of her son who is 32 years of age the Petitioner wishes that the name of her son be not revealed in the order today. The reliefs sought in the present petition are: a) Issue a Writ Order or direction in the nature of Mandamus and or a Writ order or direction in the nature of Mandamus calling for the records of the case and after examining the legality and validity of the same direct the Respondent No. s 2 and 4 to provide medical Petitioner s son …. Son Of Shri Sameer Chattopadhayay Resident of I 1600 Chitranjan Park New Delhi 110019 in consonance with Article 21 of the Constitution of India W.P.(C) 4131 2021 b) Issue a Writ Order or direction in the nature of Mandamus and or a Writ order or direction in the nature of Mandamus calling for the records of the case and after examining the legality and validity of the same direct the Respondent No.3 to provide adequate police protection assistance to the Doctors at the Respondent No. s 2 and 4 Hospital in rendering medical treatment to the Petitioner s son …. Son Of Shri Sameer Chattopadhayay Resident of I 1600 Chitranjan Park New Delhi 110019 c) Issue a Writ Order or direction in the nature of Mandamus and or a Writ order or direction in the nature of Mandamus calling for the records of the case and after examining the legality and validity of the same direct the Respondent No.3 to provide 4. This Court had vide order dated 26th March 2021 sought a report from AIIMS where he was examined in February 2021. The report has been received from AIIMS. The report of AIIMS dated 9th April 2021 reads: “ ...…(Petitioner’s son) 32 years old male came to the Emergency Services AIIMS New Delhi on 2nd February 2021 at 5:46PM. He was examined by a Senior Resident in Psychiatry and the case was discussed with a Professor of Psychiatry. There was history of recent violent behaviour. He was not cooperative and appeared aggressive. A provisional diagnosis of Schizophrenia was made. Admission to Psychiatry Ward was considered for which his COVID testing was done. He was given W.P.(C) 4131 2021 injection Haloperidol + Phenargan. While the COVID report was awaited he was kept in emergency. Next day early morning he ran away from the emergency and hence could not be admitted. His COVID report came negative later.” From the above report it is clear that the Petitioner has been again diagnosed with “Schizophrenia” and was admitted in the Psychiatry Ward of AIIMS. He was administered medicines and kept in the emergency. However he left the Emergency without an intimation or information. Thereafter vide order dated 13th April 2021 this court had directed ld. Counsels for the Petitioner and Respondents to place on record a list of facilities in and around Delhi which provide care and treatment to patients of Schizophrenia. On the last date of hearing i.e. 27th April 2021 the list of the said facilities was provided to the Court. 7. The Petitioner herself had expressed certain reservations about placing her son at Institute of Human Behaviour and Allied Sciences hereinafter “IHBAS”) and hence the Court had considered placing the Petitioner’s son in Vidyasagar Institute of Mental Health Neuro & Allied SciencesNehru Nagar New Delhi. 8. However today Mr. Manha ld. Counsel appearing for VIMHANS submits that the facility at VIMHANS is not operational and doctors may not be available at VIMHANS due to the COVID 19 condition. 9. At the beginning of the hearing today Mr. Sachar ld. Counsel for the Petitioner has informed the Court that the Petitioner has again been subjected to violent physical behaviour by her son and she is currently admitted in the AIIMS Trauma Centre. 10. From the overall facts and the circumstances emerging in the present W.P.(C) 4131 2021 case it appears that there is an urgent need to ensure that the safety of the Petitioner and also to safeguard them. The son of the Petitioner also requires urgent medical attention. For the said purpose the son of the Petitioner also needs to be placed under proper care and treatment in order to ensure that he does not cause any further physical or mental damage to either of his parents and also to ensure that his own mental condition improves. This Court is convinced that the son of the Petitioner is unable to take care of himself. In the previous hearings the Petitioner herself had appeared and also made submissions. Both the Petitioner and her husband are senior citizens. Their safety and security is also of concern to the Court. 11. Mr. Tushar Sanu ld. counsel for IHBAS along with Dr. Amit Khanna from IHBAS have joined the proceedings today. They submit that so long as the patient is brought to their facility the IHBAS facility would take care of him. 12. The Court has been informed by ld. Counsel for the Petitioner that the Petitioner’s son had tested positive for COVID 19 about 17 days ago however he submits that there ought not be any apprehension qua the same as on today since the quarantine isolation period of the Petitioner’s son has 13. Considering the overall facts and circumstances the following already passed. directions are issued: 1) The Delhi Police which is represented by Mr. Anupam Srivastava ld. Counsel shall ensure that the Petitioner’s son is taken to IHBAS facility and placed under their care today itself under police protection in terms of section 100 of the Mental Healthcare Act 2017. All the officers who are W.P.(C) 4131 2021 facilitating the same shall ensure that adequate protective measures in terms of wearing of masks etc. are taken. 2) Upon the Petitioner’s son reaching the IHBAS facility the required protocols in respect of his physical and mental conditions shall be followed. COVID 19 testing shall also be conducted on him. Further if the RT PCR test is conducted upon the Petitioner’s son to determine the same until the results come out he shall be kept in the isolation ward. 3) The Petitioner’s son shall remain in care and treatment of IHBAS which shall file a report before this Court at least two days before the next date of hearing. 4) If any further directions are required parties are permitted to approach mention the same before this Court. 14. The medical reports which are available and are a part of the record in respect of the Petitioner’s son shall be shared with Dr. Amit Khanna of IHBAS in order to assist him in the care and treatment of the patient. 15. A digitally signed copy of today’s order which shall be uploaded on the website shall be used for complying with the directions mentioned above. 16. List on 21st May 2021. PRATHIBA M. SINGH MAY 7 2021 dk Ak W.P.(C) 4131 2021

The relief of monetary claims under Section 20 of the Domestic Violence Act is ancillary relief: Kerala High Court

If no right of the parties is decided conclusively in the proceedings, then outcome, if any, of such proceedings cannot be treated as an outcome of adjudication. This was said in the case of Mahin Kutty v. Anshida [Mat.Appeal.No.739 OF 2014] by Mr.Justice A.Muhamed Mustaque And Dr.Justice Kauser Edappagath in the High Court of Kerala at Ernakulam. The facts of the case are that the wife- respondents filed a recovery suit under Section 20 of the Domestic Violence Act, 2005 before the Judicial First Class Magistrate Court but it was rejected. Hence, she filed second petition for the same relief before the Family Court. The appellants raised a preliminary objection as to the maintainability of the second petition on the ground that it is barred by the principle of res judicata. The Family Court overruled the objection. Assailing the order of the Family Court, the appellants moved the High Court. The appellants] contended that the proceedings under the Act are of a civil nature, that the order passed in proceedings initiated under the Act has to be treated as an outcome of civil proceedings and the conclusive nature of the proceedings determining the rights and obligations of the parties cannot be reopened by filing another petition for the same relief before the Family Court. The respondents contended that the order of the Magistrate can only be treated as an order of a criminal Court in a criminal proceeding that the order passed in proceedings under the Act could, at best, be taken as a relevant piece of evidence before the Family Court and the Family Court is not bound by the orders under the Act. The Court observed that “The Magistrate, while exercising the powers under the Act, is actually not deciding any dispute in like manner as involved in adversarial system, but only taking measures to protect the aggrieved person/women. The monetary reliefs mentioned under Section 20 is more in the nature of restoration of what have been deprived to the women. That means, as a result of domestic violence, if women is deprived, the Magistrate is competent to grant such reliefs as referable under Section 20.” After analyzing the facts of the case and the settled position of law on the subject, the Court opined that “The substantial issue in a proceedings under Section 20 must be domestic violence. The relief of monetary claims under Section 20 is an ancillary relief. Therefore, the outcome in ancillary proceedings, that too in the proceedings in the nature of inquiry itself will not bar the Family Court or any other competent court having power to adjudicate such dispute”.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH FRIDAY THE 09TH DAY OF APRIL 2021 19TH CHAITHRA 1943 Mat.Appeal.No.739 OF 2014 AGAINST THE ORDER IA 315 2014 IN O.P.NO.506 2013 DATED 07 08 2014 OF FAMILY COURT MUVATTUPUZHA MAHINKUTTY S O.ABDUL KARIM KINATTINGALKUDY HOUSE KARAKKUNNAM KARA ABDUL KARIM KINATTINGALKUDY HOUSE KARAKKUNNAM KARA MULAVOOR VILLAGE SHEREEFA W O.ABDUL KARIM KINATTINGALKUDY HOUSE KARAKKUNNAM KARA SRI.MATHEW JOHNwas rejected and hence the second petition for the same relief before the Family Court is barred by the principles of res judicata. The Family Court overruled the Mat.Appeal.No.739 2014 3 objection as per the impugned order holding that the proceedings under the Act are of a summary nature and the second petition before it is not barred by the principles of res judicata. What is the legal effect of the order passed under Section 20 of the Act granting monetary reliefs is the sole issue to be considered in this matter 4. Section 20 of the Act refers to monetary reliefs. The Magistrate is conferred with the power to direct the respondent to pay monetary reliefs to the aggrieved person for the losses suffered as a result of domestic violence including restoration of the property removed from the control of the aggrieved person. Section 26 of the Act enables to claim such reliefs as claimed under Section 20 before the Civil Court Family Court or Criminal Court The learned counsel for the appellants Sri.Mathew John placing reliance on the judgment Mat.Appeal.No.739 2014 4 in Pandurang Ramchandra Mandlik and another v Smt.Shantabai Ramchandra Ghatge and others and the judgment of the Madras High Court in Crl.O.P.No.28458 2019 and connected cases submitted that the proceedings under the Act are of a civil nature that the order passed in proceedings initiated under the Act has to be treated as an outcome of civil proceedings and the conclusive nature of the proceedings determining the rights and obligations of the parties cannot be reopened by filing another petition for the same relief before the Family Court 6. On the other hand learned counsel Sri.Vipin Narayan appearing for the respondent placing reliance on Satish Chander Ahuja v. Sneha Ahuja AIR 2020 SC 5397] Govindan v. Subaida Beevi 1997 KLT 910] P.G.Eshwarappa v. M.Rudrappa and Others6 SCC 96] argued that the order of the Magistrate can only be treated as an order of a criminal Court in a criminal proceedings that the order passed in a proceedings under the Act could at best be taken as a relevant piece of Mat.Appeal.No.739 2014 5 evidence before the Family Court and the Family Court is not bound by the orders under the Act. 7. The Act was enacted by the Parliament based on the larger interest of human rights concomitant with various declarations made in international conventions. The very objective of the Act is to protect the women as against the violence that occurs within the family and for matters connected therewith. The Act therefore conceives a scheme of protective measures with an object to protect women. The scheme of the Act on a close scrutiny would reflect the intention of the parliament that it was not enacted to create another platform for adjudication of disputes arising out of any matrimonial dispute but to take measures to protect the women. The proceedings are therefore understood as supplemental provisions besides the right to adjudicate any dispute arising out of a matrimonial relationship as conferred under law before the competent civil court or Family Court or criminal court. The protective measures as required to be passed may include residential orders Mat.Appeal.No.739 2014 6 monetary reliefs custody orders etc. The objective criteria in such proceedings is to protect the women and not to adjudicate upon the dispute. The proceedings are ordained for the welfare and well being of the women. When the welfare statute is made with the single focus of protection of women such Act has to be interpreted as remedial provisions to benefit the women alone. The proceedings therefore cannot be meant to understand as an extension of platform for a dispute resolution of anything connected to or related with the objective to be secured. That is the reason the legislature consciously preserved the right of the aggrieved to seek such relief referable under the Act of the Criminal Procedure Code defines “inquiry” as every inquiry other than a trial conducted under this Code by a Magistrate or Court Mat.Appeal.No.739 2014 10 Thus in the absence of any provision to penalise the respondent such proceedings under the Act can only be treated as proceedings of inquiry. The Black s Law Dictionary defines inquiry as “a request for information either procedural or substantive.” The procedure thus contemplated under the Act is in the nature of inquiry akin to the inquisitorial procedure. The Magistrate while exercising the powers under the Act is actually not deciding any dispute in like manner as involved in adversarial system but only taking measures to protect the aggrieved person women. The monetary reliefs mentioned under Section 20 is more in the nature of restoration of what have been deprived to the women. That means as a result of domestic violence if women is deprived the Magistrate is competent to grant such reliefs as referable under Section 20. The inquiry in such proceedings is limited to find whether women consequent upon domestic violence has suffered to raise claim for restoration by way of such reliefs or not Mat.Appeal.No.739 2014 11 13. The nature of the proceedings for the reliefs referable under the Act is a point of serious debate in this country. 14. In the light of the arguments raised at the Bar we need to decide whether the proceedings are in the nature of criminal proceedings or not. 15. The Apex Court succinctly laid down the difference between the civil and criminal proceedings in Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Another[(2016) 11 SCC 774] and Ram Kishan Fauji v State of Haryana and Others5 SCC 533]. The Apex Court judgments would clearly show that merely because the jurisdiction is exercised by the Magistrate and provisions of the Criminal Procedure Code are followed it does not change the character of the proceedings as criminal proceedings. The learned single Judge of the Madras High Court in a batch of cases in Crl.O.P.No.28458 2019 and connected cases after surveying case laws came to Mat.Appeal.No.739 2014 12 the definite conclusion that the proceedings under the Act are in the nature of civil proceedings and Section 482 of the Criminal Procedure Code cannot be invoked to quash a complaint under Section 12 of the Act. A learned single Judge of this Court in Vijayalekshmi Amma v. BinduKLT 79] took the view that the proceedings under the Act are in the nature of criminal proceedings. 16. The Apex Court in Regional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and Others 2 SCC 44] in paragraph 16 observed as follows “We shall proceed to examine the point urged by the learned counsel for the appellant. Remedial statutes in contradistinction to penal statutes are known as welfare beneficent or social justice oriented legislation. Such welfare statutes always receive a liberal construction. They are required to be so construed so as to secure the relief contemplated by the statute. It is well settled and needs no restatement at our hands that labour and welfare legislation have to be broadly and liberally construed having due regard to the directive principles of State policy. The Act with which we are concerned for the present is undoubtedly one such welfare oriented legislation meant to confer certain benefits upon the employees working in various establishments in the country.” 18. The Principles of Statutory Interpretation Ninth Edition 2004) by Justice C.P.Singh refers to distinction between remedial and penal statutes “Every modern legislation is actuated with some policy and speaking broadly as some beneficial object behind it. But then there are legislation which are directed to cure some immediate mischief and bring into effect some type of social reform by ameliorating condition of certain class of persons Mat.Appeal.No.739 2014 14 who according to present day notions may not have been fairly treated in the past. Such legislation prohibits certain acts by declaring them invalid and provide for redress or compensation to the persons aggrieved. If a statute of this nature does not make the offender liable to any penalty in favour of the state the legislation will be classified as remedial. Remedial statutes are also known as welfare beneficient or social justice oriented legislations. Penal statues on the other hand are those which provide for penalties for disobedience of the law and are directed against the offender in relation to the State by making him liable to imprisonment fine forfeiture or other penalty. If the statute enforces obedience to the command of law by punishing the offender and not by merely redressing an individual who may have suffered it will be classified as penal.” 19. The provisions of the Act in relation to monetary relief under Section 20 as such do not intend to penalise the respondent in such proceedings. In such circumstances the statutory provisions will have to be treated as remedial to protect the women. 20. We have already adverted that the Act does not contemplate adjudication. The proceedings therefore are only to be treated as an inquiry. The question therefore arises how far the outcome in Mat.Appeal.No.739 2014 15 an inquiry in a remedial procedure would have an impact in adjudication between the same parties before the competent court or forum 21. We mentioned earlier that there must be predicate act of domestic violence to enable the Magistrate to give any relief as referable under Section 20. The doctrine of res judicata bars the court from adjudicating the same issue which has been conclusively decided by the competent forum or court between the same parties. Inquiry being treated as an ancillary or incidental procedure of the main issue of domestic violence any outcome of such proceedings itself is not decisive in the subsequent proceedings. The substantial issue in a proceedings under Section 20 must be domestic violence. The relief of monetary claims under Section 20 is an ancillary relief. Therefore the outcome in ancillary proceedings that too in the proceedings in the nature of inquiry itself will not bar the Family Court or any other competent court having power to adjudicate such dispute. The outcome in such inquiry proceedings may be relevant while Mat.Appeal.No.739 2014 16 deciding the dispute in subsequent proceedings before the competent court under Sections 42 or 43 of the Indian Evidence Act 1872 SC 5397] opined that such order under the Act is a relevant evidence as contemplated under Sections 40 to 43 of the Evidence Act. We therefore find no merit in the appeal. The appeal fails. Accordingly it is dismissed. No costs. DR. KAUSER EDAPPAGATH

Habeas Corpus writ petition dismissed because of vulnerability in testimony: Kerala High Court

Vulnerability in the testimony occasioned by the mental disturbance caused the dismissal of the writ petition by the Kerala High Court. The bench of Hon’ble Justice K Vinod Chandran and Justice MR Anitha gave judgment in the case of Dr. Kailas Natarajan vs. The District Police Chief  [WP (crl.) no. 309 of 2020] stating that even though the woman was a major, her testimony couldn’t be relied upon due to her mental conditions and inability in taking her own decisions. The case began when the petitioner filed a writ petition for the release of a 21-year-old woman from her parents’ forceful custody. The petition proclaimed that the woman was his spiritual live-in partner and yoga shishya. The woman’s parents contended that their daughter was suffering from depression, while ago, and for the treatment, they had approached the petitioner (psychiatrist). According to the parents, for the sake of counseling and therapy, the petitioner insisted on taking solitary sessions with the woman, because of which the woman developed attachment towards the petitioner. Parents argued that the attachment was very obsessive and wasn’t normal. HC came to know that the petitioner was a 52-year-old psychiatrist and was married and had children and was accused of sexually assaulting a 14-year-old patient of his’. In the court, the petitioner had claimed that the woman was his spiritual live-in partner. The woman, in turn, also agreed to the same and said that their relationship was divine. Petitioner made the false allegations of physical violence against the parents but the court noted that all the allegations were vague and there were no signs of physical violence upon the woman. While referring to the judgment in the Hadiya case, Kerala High Court observed and stated that “We once again extract from Shafin Jahan to observe that from our interaction with the subject the suggestion was of a vulnerability occasioned by mental disturbance, which persuaded us to refuse invocation of the extraordinary remedy under Article 226 since the subject was in the safe custody of her parents”. HC bench contended that the “Doctrine of Parens Patriae” would not only give powers to the state to intervene on behalf of a child in child custody matters but also could be applied where the mentally ill were concerned. The HC bench noted that the petitioner had breached the trust of the woman’s parents. HC bench had to dismiss the writ petition filed by the petitioner because of the following reasons:

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY THE 20TH DAY OF JANUARY 2021 30TH POUSHA 1942 WP(Crl.).No.309 OF 2020 DR. KAILAS NATARAJAN AGED 52 YEARS S O.NATARAJAN RESIDING AT KALPAKAM. FFRA 03A S.N. COLLEGE JN. KOLLAM DISTRICT 691 001 THE DISTRICT POLICE CHIEF ALAPPUZHA DISTRICT 688 012 STATION HOUSE OFFICER NOORNAD POLICE STATION NOORNAD ALAPUZHA DISTRICT MUDAKOOTTU ILLAM MEKKUM MURI THAMARAKULAM VILLAGE MAVELIKARA THALUK ALAPPUZHA DISTRICT 690 530 W O.MADHUSOODANAN V. MUNDAKOTTU ILLAM MEKKUM MURI THAMARAKULAM VILLAGE MAVELIKARA THALUK ALAPPUZHA DISTRICT 690 530 W O.GOPINATHAN MUNDAKOTTU ILLAM MEKKUM MURI THAMARAKULAM VILLAGE MAVELIKARA THALUK ALAPPUZHA DISTRICT 690 530 ADDL. R6. THE DISTRICT POLICE CHIEF KOLLAM CITY. IS SUO MOTU IMPLEADED AS ADDITIONAL 6TH RESPONDENT VIDE ORDER DATED 04 01 2021 IN WP(CRL).309 2020 WP(Crl.).No.309 OF 2020 2 R1 2 R6 BY GOVERNMENT PLEADER R3 5 BY ADV. SRI.K.SURESH BABUHAVING BEEN FINALLY HEARD ON 20.01.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(Crl.).No.309 OF 2020 3 K. Vinod Chandran & M.R. Anitha JJ W.PNo.3020 Dated this the 20th day of January 2020 Vinod Chandran J The learned Counsel for the petitioner at the outset produced before us an order of the Hon ble Supreme Court in a Special Leave Petition filed against our interim order which permits us to proceed with the matter. We have heard the learned counsel for the petitioner and the party respondents 3 to 5 as also the learned Senior Government Pleader appearing for respondents 1 2 and 6 2. The learned Counsel for the petitioner argued that the petitioner is not seeking that the subject should be allowed to live with the petitioner but she should be let free. It is argued that the subject is a brilliant student and her mark sheets would show the outstanding performance in examinations which was produced across the Bar. It cannot at all be said that she is not capable of deciding for herself. It is argued WP(Crl.).No.309 OF 2020 4 that she is a major quiet competent to decide on her own way of life as held by the Hon ble Supreme Court in 2009 16) SCC 360 Girish vs. Radhamony and 2018SCC Shafin Jahan vs. Asokan K.M. 3. The learned counsel for the respondents however submits that there is no illegal detention and the respondents are trying to provide psychiatric help to their daughter. The counter affidavit filed admits that the daughter of the respondents 3 & 4 the subject of this writ petition was a brilliant student who suffered a bout of depression for which the parents had consulted the petitioner. The petitioner in the guise of counseling and therapy insisted on solitary sessions with the subject after which the subject developed an obsessive attachment to the petitioner. The parents believe that her obsessive thoughts are not normal and that she require treatment. 4. In the interim order dated 04.01.2021 we have detailed the circumstances under which we refused to remove the subject from the custody of her parents though she insisted that she wanted to go with the petitioner WP(Crl.).No.309 OF 2020 5 Today we specifically asked the learned counsel as to whether there is anything to prove the proclaimed status of the subject as the sishya of the petitioner and the petitioner s credentials to declare himself to be a spiritual teacher guru. The learned counsel for the petitioner does not offer us anything other than the assertions made in the writ petition. 5. We had in our earlier order specifically called for a report from the sixth respondent the District Police Chief as to the antecedents of the petitioner especially since there were serious apprehensions raised by the parents of the subject. The learned Senior Government Pleader has placed on record a report filed by the Assistant Commissioner of Police who conducted the enquiry as authorized by the District Police Chief. It is stated that the petitioner s parents were Government employees belonging to a well settled family with good financial background and he was married in 2001 to a woman coming from similar circumstances The petitioner is said to have completed MBBS from Medical College Thiruvananthapuram and after marriage WP(Crl.).No.309 OF 2020 6 proceeded to U.K for Post Graduation in Psychiatry. After returning from U.K initially he pursued the medical profession but later proclaimed himself to be a Vedic Yogacharya Instructor. Still later the 1st floor of his family house is said to have been converted to an Ashram in the ground floor of which building his aged mother is still residing. The petitioners father is no more. 6. It is further reported that for the last few years the petitioner is living in a rented house at Mundakkal along with his wife and children and according to the petitioner s own statement he gives minimum attention to his wife and children. The wife and children sustain on their own means and his two girl children aged 17 and 9 study at KIMS International School Kottiyam The petitioner is said to have no communication with his relatives. The mother of the petitioner who gave a statement to the police which she refused to sign expressed suspicion over the activities of the petitioner and disapproves of his actions. The mother who is living alone in the family house the upstairs of which the petitioner uses as Ashram is not convinced about the WP(Crl.).No.309 OF 2020 7 so called spiritual life led by the petitioner 7. It is also reported that the petitioner was arrayed as third accused in crime No.1950 2013 registered under the various provisions of the IPC Kerala Police Act and Protection of Children from Sexual Offences Act 2012 at East Police Station on the strength of the statement of a 14 year old girl. It was alleged that the petitioner while working as a Psychiatric Consultant misbehaved with the victim and sexually abused her at his residence where she was brought for psychiatric consultancy. However during investigation she retracted from the allegation and since there was no factual evidence other than her statement the petitioner was removed from the list of accused. 8. In the interaction with the petitioner he is said to have stated that there are pending disputes and legal proceedings with his mother the details of which were not divulged. The petitioner is also stated to have not cooperated for a direct and detailed inquiry and was unwilling to disclose his personal and professional WP(Crl.).No.309 OF 2020 8 details. The petitioner claimed to be getting fees and gifts from his followers and he had no other regular means of income. On local inquiry it is reported that there is no information of the petitioner having any followers. It is reported that the petitioner is not leading a socially acceptable life and has difficulty in explaining the means and goals of his spirituality. 9. As to the contentions raised in the writ petition the petitioner asserts that he has a live in relationship with the subject for the last 2 ½ years as spiritual partners. However there is no allegation that the parents had illegally removed the subject from the custody of the petitioner. The petitioner also admits that he is married with two children. But goes on to say that they are under the care and shelter of the petitioner living separately. We recall our earlier interaction with the subject wherein she categorically denied that she was married and asserted the relationship with the petitioner to be divine. We offered her assistance for counseling and tried to persuade her to at least at our behest to interact with a Psychiatrist or WP(Crl.).No.309 OF 2020 9 Psychoanalyst for us to get an expert opinion which she refused point blank. We attempted such a course of action since the subject on our assessment was incapable of taking a decision for herself and the parents too had raised serious concerns of her obsessive behaviour which we too witnessed during our interaction. We do not find any good ground to detract from our earlier opinion recorded in our order dated 04.1.2021. We also recorded that there was no visible evidence of any physical violence perpetrated on the subject and her allegations were very vague. 10. Before we look at the law declared in the decisions cited at the Bar we briefly recount the facts in the individual cases. In Girish a mother filed a habeas corpus petition before the High Court alleging that her minor daughter was kidnapped. The detenue was produced before Court who asserted that she was a major and that she was married to the respondent. The High Court directed registration of a case for offences punishable under the Penal Code against the respondent It was held that the High Court has no jurisdiction to WP(Crl.).No.309 OF 2020 10 pass such an order. When the alleged detenue appears in Court and states that she had left her parental home on her own free will then there could be no further orders passed in the writ petition filed under Article 226 was the dictum. 11. Shafin Jahan had more complex facts in which the missing girl had first left her parental home expressing a desire to convert and later married a person from the faith to which she converted. The father was the petitioner before the High Court who moved twice for issuance of a writ of habeas corpus. The first of such writ petitions was dismissed finding that the daughter of the petitioner is not under any illegal confinement and is residing in an institution on her own wish and will having embraced a different faith. The father and other family members were allowed to visit her at the above institution subject to the institutional regulations Then a further writ petition was filed alleging that his daughter was likely to be transported out of the country The daughter of the petitioner appeared and refuted the contention of the father and on her free will was allowed WP(Crl.).No.309 OF 2020 11 to go along with the 7th respondent her friend. Later she appeared before the High Court and made a statement that she had entered into a marriage with Shafin Jahan The High Court invoking the parens patriae jurisdiction annulled the marriage and directed the subject to be escorted to her parental residence. 12. The Hon ble Supreme Court set aside the judgment of the High Court allowing the major girl to join her husband. Reversing the judgment of the High Court the Hon ble Supreme Court held so: 28. In the instant case the High Court as is noticeable from the impugned verdict has been erroneously guided by some kind of social phenomenon that was frescoed before it. The writ court has taken exception to the marriage of Respondent 9 herein with the appellant. It felt perturbed. As we see there was nothing to be taken exception to. Initially Hadiya had declined to go with her father and expressed her desire to stay with Respondent 7 before the High Court and in the first writ it had so directed. The adamantine attitude of the father possibly impelled by obsessive parental love compelled him to knock at the doors of the High Court in another habeas corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him True it is she had gone with Respondent 7 before the High Court but that does not mean and can never mean that she as a major could not enter into a marital relationship. But the High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married And that is where the error has crept in. The High Court should have after an interaction as regards her choice WP(Crl.).No.309 OF 2020 12 directed that she was free to go where she wished to. 29. The High Court further erred by reflecting upon the social radicalisation and certain other aspects. In a writ of habeas corpus especially in the instant case it was absolutely unnecessary. If there was any criminality in any sphere it is for the law enforcing agency to do the needful but as long as the detenue has not been booked under law to justify the detention which is under challenge the obligation of the Court is to exercise the celebrated writ that breathes life into our constitutional guarantee of freedom. The approach of the High Court on the said score is wholly fallacious 13. In the present case we find the facts to be quite different. The alleged detenue is residing in her parental home and is aged 21 years definitely a major The petitioner who is 52 years old allege illegal detention of the subject by her own parents on the ground that he has a live in relationship with her for the last two and half years. It is pertinent that though the assertion is of a live in relationship there is no contention that the subject ever lived with him and was illegally taken away by her parents. The petitioner has moved the Court as the live in spiritual partner of the subject and does not speak of any marriage between them The petitioner also is married and has two children in 14. The petitioner s association with the subject also commenced with the Psychiatric consultation WP(Crl.).No.309 OF 2020 13 the parents initiated which has now taken a very different turn. As we noticed in the interim order dated 04.01.2021 on interaction we did not find the subject to be capable of taking a decision for herself. We have also recorded the submission made by the parents before us that their daughter had shown signs of obsession coupled with hysteria. We sought her permission to summon a Psychiatrist or a Psycho analyst to talk to her so as to better assess her mental state. The subject adamantly refused to talk to anybody. It was in these circumstances that we found no reason to remove the 21 year old from the custody of the parents who we thought were best equipped to deal with her present situation 15. In this context we refer to the consideration made by the Hon ble Supreme Court in Shafin Jahan to the scope and ambit of the parens patriae jurisdiction. We extract here under paragraphs 31 39 and 45 31. Another aspect which calls for invalidating the order of the High Court is the situation in which it has invoked the parens patriae doctrine. Parens patriae in Latin means “parent of the nation”. In law it refers to the power of the State to intervene against an abusive or negligent parent legal guardian or informal caretaker and to act as the parent of any child or individual who is in need of protection. “The parens patriae jurisdiction is sometimes spoken of as ‘supervisory’”15 WP(Crl.).No.309 OF 2020 14 39. Constitutional courts in this country exercise parens patriae jurisdiction in matters of child custody treating the welfare of the child as the paramount concern There are situations when the court can invoke the parens patriae principle and the same is required to be invoked only in exceptional situations. We may like to give some examples. For example where a person is mentally ill and is produced before the court in a writ of habeas corpus the court may invoke the aforesaid doctrine. On certain other occasions when a girl who is not a major has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents the court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major xxx 45. Thus the constitutional courts may also act as parens patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the parens patriae doctrine. The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent legal guardian or have an abusive or negligent parent legal guardian 16. The Hon ble Supreme Court found that though the Constitutional Courts normally exercise parens patriae jurisdiction in matters of child custody there are other exceptional situations where it can be invoked A person mentally ill if produced before Court and cases where minor girls elope and on production expresses fear to go with their parents are treated as exceptional situations. In the present case the petitioner has WP(Crl.).No.309 OF 2020 15 sought for releasing the daughter of respondents 3 and 4 from their custody. We directed the subject to be produced before us and we interacted with her. On finding her to be incapable of taking a decision for herself we directed her to be retained with her parents at her parental home. We in fact found nothing to remove the subject from the custody of her parents in her present mental state which they are the best persons to address We are not satisfied that the parents are in any manner incapable of or dis entitled from retaining custody of their daughter who though a major was showing signs of mental disturbance. The parents were also exploring ways and means to enable treatment for their daughter. We once again extract from Shafin Jahan to observe that from our interaction with the subject the suggestion was of a vulnerability occasioned by mental disturbance which persuaded us to refuse invocation of the extra ordinary remedy under Article 226 since the subject was in the safe custody of her parents. 51. Relying upon the aforesaid decisions Mr Divan emphasised on the concept that when the major is a vulnerable adult the High Court under Article 226 of the Constitution of India can exercise the parens patriae doctrine which has been exercised in this case. The WP(Crl.).No.309 OF 2020 16 aforesaid judgments in our considered opinion are not applicable to the facts of the present case. We say so without any hesitation as we have interacted with Respondent 9 and there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her (Underlined for emphasis 17. We were also of the opinion that the antecedents of the petitioner are not such as to trust him with the custody of a young girl of 21 on mere statement of she being tutored by the petitioner in spirituality. This is especially so when the parents of the subject had initially approached the petitioner with their daughter for psychiatric consultation and their trust in him as a Doctor and therapist was breached to the extent of the petitioner declaring his patient to be a live in partner when he himself was married with two children. We also did not adopt the step of putting her in a safe home since she refused vehemently and her mental state was also not conducive to that. We dismiss the writ petition leaving the parties to suffer their respective costs. We direct that the Registry shall not issue certified copy of the report of the Police unless WP(Crl.).No.309 OF 2020 17 on orders of this Court since it contains the name of the victim in a POCSO case. Shg jma WP(Crl.).No.309 OF 2020 PETITIONER S S EXHIBITS 18 EXHIBIT R3 A EXHIBIT R3 B RESPONDENT S S EXHIBITS THE TRUE COPY OF THE EMAIL RECEIVED BY THE PETITIONER FROM THE DETINUE REGARDING THE PETITION FILED BEFORE THE STATE HUMAN RIGHTS COMMISSION DATED 3.10.2020 THE TRUE COPY OF THE PRINT OUT OF THE CASE THE TRUE COPY OF THE PRINT OUT OF THE EMAIL COMPLAINT BEFORE THE 1ST RESPONDENT DATED THE TRUE COPY OF THE PRINT OUT OF THE EMAILS FROM MS LEKSHMI DATED 29.11.2020 THE TRUE COPY OF THE PRINT OUT OF THE EMAILS FROM MS LEKSHMI 2.12.2020 A TRUE COPY OF THE SAID OP NO 880 2020 FILED ON 22.09.2020 IN THE FILE OF THE FAMILY COURT MAVALIKKARA A TRUE COPY OF THE SID TEMPORARY INUCTION APPLICATION VIDE IA 1 2020 IN OP 880 2020 BEFORE THE FAMILY COURT MAVELIKKARA EXHIBIT R3 C A TRUE COPY OF THE SAID ORDER IN IA 1 2020 IN OP 880 2020 DATD 22.09.2020

Seniority could not be claimed, if one is not a trained teacher as on the date of appointment: Supreme Court

Keeping in view the principle laid down in Vaijanath’s case, Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree. Her appointment was thus in accordance with Section 5(5) of the Act, so was the appointment of the other private respondents. However, Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment. The Supreme Court held this in, Madhavi v. Chagan &Ors.( SLP (CIVIL) NO. 9611 OF 2019) The appellant herein was appointed with Shri Samarth Shikshan Sanstha on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. 2.5.1986. On 24.11.1988, the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988- 89. And thereafter, Chagan acquired B.Sc. degree. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore, he contended that he is senior to Madhavi and in terms of the Rules, he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. And the tribunal dismissed the application, as the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. n in respect of temporary vacancy, Full Bench of the High Court held that in terms of Section 5 of the Act, the management is bound to fill the vacancy, be it permanent or temporary, by appointing a person duly qualified to fill such vacancy. The High Court held that if Rules 3(1)(a)(i) and (ii) are read in the light of provisions of Rule 6 and Schedule ‘B’, it is obvious that Rule 3(1)(a)(ii) only intended to relax the requirement of an experience of not less than 5 years’ service which is specifically provided for in Rule 3(1)(a)(i). The Scheme of the Act cannot be comprehended to hold that the legislature intended to do away with the requirement of the senior-most teacher being a trained teacher. However, the court was of the view that, “Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such  qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of the Rules. Such teacher is assigned Category ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category ‘D’ and later on after acquiring B.Ed. degree, he entered Category ‘C’, whereas Madhavi and other private respondents were already in Category ‘C’ since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3966 OF 2020 ARISING OUT OF SLPNO. 9611 OF 2019) CHAGAN & ORS. W I T H CIVIL APPEAL NO. 3967 OF 2020 ARISING OUT OF SLPNO. 10046 OF 2019) A N D CONTEMPT PETITIONNO. 647 OF 2020 SLPNO. 10046 OF 2019 JUDGMENT HEMANT GUPTA J. The present appeals are directed against the common order of the High Court of Judicature at Bombay Nagpur Bench whereby the review of the dismissed writ petition filed by respondent No. 11 was allowed and the order passed by the School Tribunal dated 1.1.2016 was set aside. 1 Hereinafter referred to as ‘Chagan’ The appellant2 herein was appointed with Shri Samarth Shikshan Sanstha3 on a temporary basis on 16.7.1985. At that time she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private SchoolsRules 19814. However she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. The School later approved their appointments against regular vacancies on 5.9.1986 w.e.f. On 24.11.1988 the School passed an order of upgradation of Madhavi to High School Scale w.e.f. 24.11.1988. The appointment of Madhavi was purely temporary upto the Academic Session 1988 89. Some of the candidates who are respondent Nos. 5 to 7 all graduates and holding B.Ed. qualification were appointed at the School and placed in Category ‘C’ of Schedule ‘F’ of the Rules. It is thereafter that Chagan acquired B.Sc. degree and entered 2 Hereinafter referred as ‘Madhavi’ 3 For short the ‘School’ 4 For short the ‘Rules’ Category ‘D’ of Schedule ‘F’ of the Rules on 21.2.1997. Chagan then obtained B.Ed. degree in the year 1999 and was thus placed in Category ‘C’ of Schedule ‘F’. The dispute arose at the time of appointment of Madhavi as the Head Master of the School. Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore he contended that he is senior to Madhavi and in terms of the Rules he would be entitled to be promoted as Head Master. The promotion order dated 31.5.2014 promoting Madhavi as Head Master was challenged in appeal before the learned School Tribunal. The challenge was also to the promotion of respondent No. 5 who was promoted as Assistant Head Master and respondent Nos. 6 and 7 who were promoted as Supervisors of the School. Chagan claimed appointment as Head Master of the School. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(1)(j) of the Rules. It was contended that the post of Secondary Teacher was not vacant in the year 1985 therefore Madhavi was illegally appointed as Primary Teacher which is Category ‘E’ post whereas he was appointed on 1.8.1985 and thus he is senior to Madhavi. holding as under: The learned School Tribunal dismissed the appeal on 1.1.2016 while “9. It is clear from these provisions that the appellant as per his qualification is not come under the category of trained graduate at the time of his appointment on 01.08.1985. The respondent No. 3 was possessing the qualification of B.Sc. B.Ed. on the same day of her appointment on 16.07.1985. Therefore she would be considered in the category of trained graduate teacher on the day of her appointment. 12. It was also not disputed that the appellant subsequently improved his qualification by acquiring a degree in 1997. He has also acquired a teaching experience of 10 years till that time. Therefore since the date when he completed his graduation along with 10 years teaching experience he become eligible to enter into category C. The appellant himself has mentioned that the respondent No. 4 was appointed as an assistant teacher on 24.11.1988 when the post became vacant. Even after considering this date it is clear that the respondent No. 4 who was possessing the qualification of B.Sc. B.Ed. in 1985 was directly entered in category C from that date. Therefore the appellant who entered in category C in 1997 is admittedly junior to respondent No. The judgment of this Court in Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust & Ors.5 referred to by Chagan was distinguished by the Ld. Tribunal for the reason that the appellant in the aforesaid case joined service prior to the respondent. Chagan challenged the order passed by the School Tribunal by way of a writ petition before the High Court. The same was also dismissed by the learned Single Bench with the detailed reasoning 5 13 SCC 219 on 28.9.2017. An application for review was then filed on 2.12.2017 which was allowed with the following order: “Heard. For the reasons stated in the application the application is allowed. Until further orders the vacant post of Assistant Head Master shall not be filled in. Disposed of.” It is thereafter that the learned Single Bench passed the order impugned in the present appeal whereby the writ petition filed by Chagan was allowed. The High Court relied upon Viman Vaman Awale to hold that the seniority is to be given from the date of first appointment whereas the judgment in Bhawna v. State of Maharashtra & Ors.6 was distinguished observing that it was a case where the teacher was not holding the qualification of B.Ed. at the time of appointment and later acquired the qualification. It was however noted that in the present case Chagan was a teacher already holding such qualification on the date of initial appointment. It is the said order which has been challenged by the School and Madhavi before this Court. 10. Some of the relevant provisions of The Maharashtra Employees of Private Schools Regulation Act 19777 and the Rules are extracted hereunder: 2(9) “Head of a school” or “Head” means the person by whatever name called in charge of the academic and 6 4 SCC 300 7 For short the ‘Act’ administrative duties and functions of a school conducted by any Management and recognised or deemed to be recognised under this Act and includes a principal vice principal head master head mistress assistant head master assistant head mistress or superintendent thereof 2(18) “primary education” means education imparted in such subjects and upto such standards as may be determined by the State Government from time to time located either in a primary or a secondary school 2(19) “primary school” means a recognised school or a part of such school in which primary education is imparted 2(24) “School” means a primary school secondary school higher secondary school junior college of education or any other institution by whatever name called including technical vocational or art institution or part of any such school college or institution which imparts general technical vocational art or as the case may be special education or training in any faculty or discipline or subject below the degree level 2(26) “teacher” means a member of the teaching staff and includes the Head of a school 5. Certain obligations of Management of private schools. The Management shall as soon as possible fill in in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Provided that unless such vacancy is to be filled in by promotion the Management shall before proceeding to fill such vacancy ascertain from the Educational Inspector Greater Bombay the Education Officer Zilla Parishad or as the case may be the Director or the Officer designated by the Director in respect of schools imparting technical vocational art or special education whether there is any suitable person available on the list of surplus persons maintained by him for absorption in other schools and in the event of such person being available the Management shall appoint that person in such vacancy. 5(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf and shall state the period of appointment of such person. 2(e) “Education Officer” i) in relation to a private secondary or higher secondary school or Junior College of Education in Greater Bombay means an Educational Inspector ii) in relation to a private primary school in the areas of any Municipal Corporation or Municipal Council means the Education Officer or the Administrative Officer of a Municipal Corporation or a Municipal School Board as the case may be and iii) in relation to any private school in areas elsewhere in the State of Maharashtra means an Education Officer in a Zilla Parishad 2(j) “trained graduate” means a person possessing the qualifications mentioned in sub clauses to of clauseof item II in Schedule ‘B’ 2(k) “trained teacher” means a teacher who has secured a professional certificate a diploma or a degree recognised by the Department which qualifies him for a teaching post in a school xx Rule 3A person to be appointed as the Head — a) of a primary school having an enrolment of students above 200 or having Standards I to VII shall be the seniormost trained teacher who has put in not less than five years’ service and ii) of any other primary school shall be the seniormost teacher in the school b) of a secondary school including night school or a Junior College of Education shall be a graduate possessing Bachelor’s degree in teaching or education of a statutory University or any other qualification recognised by Government as equivalent thereto and possessing not less than five years’ total full time teaching experience after graduation in a secondary school or a Junior College of Education out of which at least two years’ experience shall be after acquiring Bachelor’s degree in teaching or education: Provided that in the case of a person to be appointed as the Head of a night secondary school — i) he shall not be the one who is holding the post of the Head or Assistant Head of a day school and ii) the experience laid down in clauseof sub rulemay be as a part time teacher. 2) xxx Rule 6.Qualifications of teachers.—The minimum qualifications for the posts of teachers and the non teaching staff in the primary schools secondary schools Junior Colleges and Junior Colleges of Education shall be as specified in Schedule “ B ”: the Education Officer may allow Managements to appoint untrained Science graduate teachers for teaching Mathematics and Science subjects that or untrained Arts or Commerce graduates for teaching other subjects in secondary schools in exceptional circumstances such as non availability of trained graduates. Such appointments shall however be allowed on an year to year basis on the clear understanding that they shall have to obtain training qualification at their own cost and further subject to the condition that their services shall be liable for termination as soon as trained graduate teachers become available. Provided further that the untrained graduate appointed as a teacher after obtaining the permission from the Education Officer before the commencement of the Maharashtra Employees of Private SchoolsRules 1981 and who continues to be in service in any school on the date of commencement of the Maharashtra Employees of Private Schools(Amendment) Rules 1984 shall be continued in service on the condition that he obtains the prescribed training qualifications at his own cost before 1st June 1987 unless he has already obtained such qualifications failing which his services shall be terminated. Rule 12.Seniority List.—(1) Every Management shall prepare and maintain seniority list of the teaching staff including Head Master and Assistant Head Master and non teaching staff in0the School in accordance with the guidelines laid down in Schedule “ F ”. The seniority list so prepared shall be circulated amongst the members of the staff concerned and their signatures for having received a copy of the list shall be obtained. Any subsequent change made in the seniority list from time to time shall also be brought to the notice of the members of the staff concerned and their signatures for having noted the change shall be 2) Objections if any to the seniority list or to the changes therein shall be duly taken into consideration by the Management. 3) Disputes if any in the matter of interse seniority shall be referred to the Education Officer for his decision. xx SCHEDULE B I. Qualifications for Primary TeachersAppointment to the posts of Primary school teachers shall be made by nomination from amongst candidates who have passed S.S.C. examination or Matriculation examination or Lokshala examination or any other examination recognised as such by Government and the Primary Teachers Certificate examination or Diploma in Education examination or a Diploma in Education shall be qualified to teach standards I to IV only notwithstanding anything contained in the foregoing provisions— а) Candidates who were recruited before the coming into force of these rules in accordance with the recruitment rules then in force and who were thereafter discharged for want of vacancies shall be eligible few reappointment. b) Other things being equal preference may be given to i) candidates who have passed the S.S.C. or other equivalent examination with English Mathematics and Science or any two of them and qualifications mentioned at item through condensed II. Qualifications for trained teachers in secondary schools and junior colleges of education. 1) For Graduate Teachers: i) A Bachelor s degree in Teaching or Education of any statutory University or a qualification recognised by Government as equivalent thereto ii) A Teaching Diploma of any statutory University if a person holding it is appointed for the first time before the 1st October 1970 candidates obtaining eligible women A Secondary Teachers Certificate of the Education Department of this State if the person holding it is appointed for the first time before 1st October 1970: iv) A Diploma in Education of the Graduates Basic Training Centres v) A Diploma in Physical Education or a qualification recognised by Government as equivalent thereto or Bifocal Higher Diploma in Physical Education of the Government of Maharashtrao t B. P. Ed. or B. P. Ed. or B.Ed. Physical Education)or B.Ed.(Bombay University) or Diploma in Physical Education Culture and Recreation awarded by Hanuman Vyayam Prasarak Mandal Amravati or vi) Any other degree diploma or certificate which Government or the Inter University Board may sanction as equivalent to any of the above qualifications. 2) For Undergraduate Teachers: i) A Diploma in "Education of Nagpur and Bombay Universities which is awarded two years after Secondary School Certificate Examination ii) A Secondary Teachers Certificate of the Education Department or the Teachers’ Diploma of any other statutory University if the person holding it is appointed for the first time before the 1st October 1970 iii) A Certificate in Physical Education recognised by Government if the person holding it is appointed for the first time before the 1st June 1971 iv) A Diploma in Education awarded by Government or v) Any other equivalent diploma or certificate approved by Government or Inter University Board. SCHEDULE F 1. Guidelines for fixation of seniority of teachers in the primary schools. The seniority of primary school teachers in Primary Schools shall be based on the date of joining service and continuous officiation. 2. Guidelines for fixation of seniority of teachers in the secondary schools Junior Colleges of Education and Junior College classes attached to secondary schools and Senior Colleges :— For the purpose of fixation of seniority of teachers in the secondary schools Junior Colleges of Education and Junior College classes attached to Secondary Schools the teachers should be categorised as Category A. Category B. Category C. Holders of— M A. M.Sc. M.Com. B.T. B.Ed. or its equivalent or B.A. B.Sc. B.Com. B.T. B.Ed. or its equivalent or B.A. B.Sc. B.Com. Dip. T.or B.A. B.Sc. B.Com. S.T.C. Dip. Ed. Dip. . T. one year course) with 10 years post S.T.C. etc. service. Category D. Holders of — B.A. B.Sc. B.Com. S.T.C. Dip. Ed.or its equivalent. Category E. Holders of— S.S.C. T.C. Dip. Ed. Dip. T. one year course) or its equivalent. Note 1. For the purpose of categories C D and E teachers with S.T.C. T.D. Jr. P. T.C. Dip. 1. Dip. Ed. post S.S.C. one year course)) qualifications appointed on or after 1st October 1970 shall be considered as untrained and their seniority shall be fixed in the ‘F’ or ‘G’ category of untrained teachers as the case may be. Note 2. The following training qualifications which can be secured two years after S.S.C. Examination shall be considered as training qualification for the purpose of seniority even after 1st October 1970: 1) D .Ed.2) T .D .3) Dip. Ed.of the Rules is a person possessing the qualification mentioned in Schedule ‘B’ of the Rules. 12. Learned counsel for the appellant also relied on a judgment of Bombay High Court Nagpur Bench in Gaur Pratibha & Ors. v. State of Maharashtra through the Secretary & Ors.8 in which the Court had examined both the judgments of this Court in Viman Vaman Awale and Bhawna and also the arguments that the latter judgment is per incuriam as the former was not referred in it. The Court held as under: “96. We do not think they do. Viman Vaman Awale concerns the Primary Assistant Teachers Bhawana the Secondary Assistant Teachers. So the former case interprets the “Guidelines for fixation of seniority of teachers in the primary schools” under Schedule F under Rule 12. The latter the “Guidelines for fixation of seniority of teachers in the secondary schools Junior Colleges of Education and Junior College classes attached to secondary schools and Senior Colleges.” 97. In Viman Vaman Awale both the teachers had their basic qualifications when they entered service their additional qualifications notwithstanding. And as per Clauseof Schedule F the seniority of primary school teachers shall be based on the date of joining service and continuous officiation. Both the candidates duly qualified Viman Vaman Awale upheld the seniority of the teacher that joined the service first. 98. In Bhawana as we have already observed the teacher who entered the service first had no prerequisite qualification— B.Ed. So she joined the service as an untrained teacher falling in category ‘F’. The other teacher entered the service as a trained teacher and placed himself straightaway in C Category. The first teacher could get the B.Ed. and enter that Category only later. So as per Clauseof Schedule F—and as clarified by Note 4—the categories mentioned in Schedule F represented the ladder of seniority in descending order. Thus Bhawana has held that a teacher in Category F on later migration to Category C cannot steal a march over a teacher already ensconced in that Category. 8 2019 SCC OnLine Bom 597 99. Therefore we conclude that Viman Vaman Awale and Bhawana do not conflict with each other they have taken no divergent precedential paths. Though Bhawana may not have been aware of Viman Vaman Awale both decisions have displayed remarkable It was also pointed out that the Special Leave Petition against the said judgment was dismissed. 14. On the other hand learned counsel for Chagan vehemently argued that the Rules are common to both primary and secondary schools. Therefore the principle laid down in Viman Vaman Awale would be a binding precedent and the judgment in Bhawna wherein the Viman Vaman Awale’s case was not referred is per incuriam. It was argued that Viman Vaman Awale was a case of a secondary School as per the information received under the Right to Information Act. Hence the principle laid down in the aforesaid judgment has been rightly applied by the High Court while setting aside the appointment of Madhavi as the Head Master. 15. We find that the order of the High Court cannot be sustained in law. This Court in Viman Vaman Awale has proceeded as if the Court is dealing with seniority of teachers in a primary school. This Court also referred to Full Bench judgment of Bombay High Court reported as Vaijanath s o Tatyarao Shinde v. Secretary Marathwada Shikshan Prasarak Mandal Devgiri College Campus Aurangabad & Ors.9 which again decided the question of promotion to the post of Head Master of a primary school. This Court in Viman Vaman Awale held as under: “15. The appellant herein entered the service in Respondent 3 School as Assistant Teacher of a primary school with Diploma in Education i.e. D. Ed qualification. She thus fulfilled the qualification for that post. B. Ed degree is not the essential qualification prescribed for this post. This is a relevant factor which is to be kept in mind for resolving the controversy in issue. 18. In the present case as already mentioned above the appellant was having the requisite minimum qualification for appointment to the post of Assistant Teacher in the primary school and it was not a case of appointment of an unqualified teacher when the appellant was appointed to the said post on 24 8 1979. This makes all the difference and renders the judgment in Vaijanath6 Mah LJ 682] as inapplicable to the facts of the present case. The High Court has failed to notice this relevant distinction and mechanically applied the ratio of the in Vaijanath6 Mah LJ 682].” In fact learned counsel for Chagan relied upon Vaijanath in support of his arguments before the learned Single Bench. The counsel for Madhavi also referred to the said judgment in support of the arguments before the High Court. Such argument was dealt with by the High Court in the impugned judgment which reads as under: “13. It was strenuously contended on behalf of respondent Nos. 2 to 7 that Full Bench judgment of this 9 2006Mh.L.J. 682 in of Vaijanath Shinde v. Secretarysupported their arguments and that the relevant date for determining seniority was the date when the petitioner acquired the higher qualification and entered Category C of Clause 2 to Schedule F of the MEPS Rules. But the said Full Bench judgment of this Court has been distinguished in the aforesaid judgment of the Hon ble Supreme Court in the case of Viman Vaman Awale v. Gangadhar Makhriya Charitable Trustandare read in the light of provisions of Rule 6 and Schedule ‘B’ it is obvious that Rule 3(1)(a)(ii) only intended to relax the requirement of an experience of not less than 5 years’ service which is specifically provided for in Rule 3(1)(a)(i). The Scheme of the Act cannot be comprehended to hold that the legislature intended to do away with the requirement of the senior most teacher being a trained teacher. It could not have been the intention of the legislature while framing Rule 3(1)(a)(ii) to deliberately omit the word “trained”. The omission of the word “trained” is an obvious drafting error and if the said word is not supplemented the rule cannot be harmonized in tune with the scheme of the Act and the other Rules which are referred to In view thereof we find that the judgment of this Court in Viman Vaman Awale dealt with only seniority of teachers in a primary school. The said judgment does not make any reference to seniority of teachers in a secondary school. On the contrary the judgment of this Court in Bhawna is a judgment pertaining to seniority of teachers in a secondary school. This Court held as under: “9. Undisputably the fifth respondent was holding the qualification of BA BEd at the time of his initial appointment dated 13 8 1997 and became a member of Category C. At the same time the appellant though appointed on 27 6 1994 as an untrained teacher having acquired the training qualification i.e. BEd on 19 9 1997 and became a member of Category C after entry of the fifth respondent into service as a trained teacher could not have claimed seniority in Category C over the fifth respondent prior to acquiring professional qualification BEd) as envisaged under the scheme of the 1981 Rules as trained teacher and this what was considered by the authority who examined the inter se seniority of the appellant vis à vis fifth respondent under the 1981 Rules and confirmed by the High Court on dismissal of the writ petition preferred by the appellant.” 20. The judgment in Bhawna is directly applicable to the present case inasmuch as Madhavi was holding the qualifications of B.A. B.Ed. at the time of her initial appointment on 16.7.1985 though she was appointed against a regular vacancy on 24.11.1988. However Chagan was not qualified for appointment as Assistant Teacher as he graduated in Science only in the year 1997 and passed B.Ed. in 1999. He was upgraded to Category ‘C’ only upon acquiring these qualifications. Accordingly the seniority list circulated on 1.1.2014 mentioned Chagan’s name at Serial No. 10 while Madhavi was placed at Serial No. 2 though first in Category ‘C’. 21. Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications he was an under graduate teacher falling in Category II(2)(i) orof Schedule ‘B’ of the Rules. Such teacher is assigned Category ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’ is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997 he climbed the ladder and became part of Category ‘D’ and later on after acquiring B.Ed. degree he entered Category ‘C’ whereas Madhavi and other private respondents were already in Category ‘C’ since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. 22. Clause 1 of Schedule ‘F’ deals with seniority of teachers in the primary school. The fact that the School in question is not a primary school could not be controverted by learned counsel for Chagan. Therefore it is Clause 2 of Schedule ‘F’ which would be referred to in order to determine the seniority of teachers in the secondary school. 23. The Scheme of the Act and the Rules makes it clear that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school whereas the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule ‘B’ prescribes qualifications for the appointment of teachers in Primary School whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule ‘B’. Similarly Schedule ‘F’ deals with rule of seniority having different categories. Category ‘E’ is the lower most level of the ladder which can be upgraded with improvements in the qualifications of the teachers. 24. We find that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules. Clause 1 was the subject matter of interpretation by this Court in Viman Vaman Awale and Clause 2 was the subject matter of interpretation in Bhawna. Vaijanath also dealt with promotion to the post of Head Master of a School falling in Clause 1 of Schedule ‘F’. Since the School in question is a secondary school therefore Clause 2 of Schedule ‘F’ will determine the seniority. Chagan was not a trained teacher to be part of Category ‘C’ at the time of his appointment on 1.8.1985 and he was rightly placed in Category ‘E’ on account of his qualification but he upgraded his qualifications and hence was placed in Category ‘D’ and ‘C’ on acquiring graduation and B.Ed. degrees respectively. 25. Keeping in view the principle laid down in Vaijanath Madhavi was qualified for appointment as a temporary teacher as she was a graduate and also possessed B.Ed. degree. Her appointment was thus in accordance with Section 5(5) of the Act so was the appointment of the other private respondents. However Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment. 26. Thus we find that the judgment of the High Court in review cannot be sustained in law and the same is hence set aside. The Writ Petition is ordered to be dismissed. The present appeals are thus allowed. In view of the above the contempt petition is dismissed. NEW DELHI DECEMBER 9 2020. L. NAGESWARA RAO) HEMANT GUPTA) AJAY RASTOGI)

Power of the Court is supervisory in nature and the jurisdiction is not that of an appellate body: Supreme Court of India.

The principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision-making process must be appreciated with reference to relevant well-known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. The same was observed by Hon’ble K. M. Joseph, J in the matter of Uttar Pradesh Subordinate Service Selection Committee & Anr. vs. Brijendra Pratap Singh & Anr. – [Civil Appeal No. 7720 of 2021]. Brief facts of the case are that in June 2015, the appellant issued an advertisement calling for applications for filling up the post of Gram Panchayat Adhikari. The Minister for Panchayati Raj, Department in the State of Uttar Pradesh, was one Shri Kailash Yadav. Examination, pursuant to the advertisement, was scheduled to take place on 21.02.2016. Shri Kailash Yadav passed away on 09.02.2016. In the examination, question No. 46 was as follows: “46. Presently who is the Panchayati Raj Minister in Uttar Pradesh? A. Sh. Shivpal Yadav B. Sh. Kailash Yadav C. Sh. Balram Yadav D. Sh. Durga Prasad Yadav” As on the date of the examination, Shri Kailash Yadav whose name is shown as the correct answer in terms of Option B had passed away and therefore, Option B would not be correct answer. The appellant Commission, accordingly, took the decision that the candidates who have chosen option (‘B’) as correct answer or did not mark any option for the said question will be awarded 1 mark and no action is required in respect of the candidates who have chosen option A, C, D as the correct answer to this question. The respondent was a candidate in the said examination. Regarding question No. 46, he offered option No. A. He filed a writ petition and prayed that the Hon’ble Court issue a writ order, or direction in writ of Mandamus directing and commanding the respondent nos. 2 & 3 to award the mark of question no. 46 of Booklet Series ‘C’ to the petitioner and prepare a fresh select list. Learned counsel appearing on behalf of the appellant contended that so far as the decision to award marks to those candidates who answered question no. 46 by approving option ‘B’, candidates were given the benefit, as the Commission, was of the view that the said person was indeed the minister, and the answer would have been correct but for his passing away just 12 days prior to the date of the examination. As far as those candidates who did not attempt to answer the question concerned, the Court is persuaded to take the view that noticing that all the answers to the question were as on the date of the examination incorrect, if a candidate did not answer the question, it should not work against him. Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit. Supreme court after perusing the facts and arguments presented, held that – “This is a case whereas on the date when the examination took place, none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option ‘B’). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option ‘B’. Those who did not answer any of the options, were given marks on the appellant’s premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. In such circumstances, we are of the view that, in the facts of this case, the appellant has made out a case for interference. Appeal is allowed and the impugned judgment stands set aside.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7720 OF 2021 Arising out of SLPExamination 2015 held on 21 February 2016 this face came to notice that the correct option of answer of one question is Shri Kailash Yadav Panchayati Raj Minister of Uttar Pradesh State had Shri Yadav not expired on 09th February 2016 i.e. prior to the date of written examination i.e. 21 February 2016 01mark is fixed for each question. In the position CA No. 7720 2021as correct answer or did not mark any option for the said question be awarded 01(one) mark and no action is required in respect of the candidates who have chosen option A C D as the correct answer of this question The results came to be declared on 24.12.2016. on 27.12.2016 based on the results the appellant made recommendations for filling up the vacancies. The respondent was a candidate in the said examination. In regard to question No. 46 he offered option No. A. He secured 86 marks. The cut off marks for the category to which the respondent belongedwas 87. He fell short of the required cut off by one mark. He filed a writ petition which has finally culminated in the present appeal The prayer sought for in the said writ petition may be “It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to: Issue a writ order or direction in the nature of writ of Mandamus directing and commanding the respondent nos. 2 & 3 to award the mark of question no. 46 of Booklet Series ‘C’ to the petitioner and prepare a fresh select list Issue a writ order or direction in the nature of writ of Mandamus directing the respondent no.2 and 3 to consider the candidature of the petitioner as selected candidate or petitioner may be adjusted on the post of Gram Panchayat Adhikari in Gram Panchayat Adhikari 2015 Issue any other writ order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case so as to secure the ends of justice or else the Petitioners shall D. To Award the cost of the petition to the Learned Single Judge did not find merit in the contention of the respondent and the writ petition was dismissed. By the impugned judgment the Division Bench however allowed the appeal filed by the respondent. The Division Bench took the view that the ‘case at hand is not having any dispute that all the options of question no. 46 were incorrect on the date of the selection test which was due to the sad demise of the then minister’. Awarding of marks to those who did not give the answer to question cannot be accepted to be proper. So also the answer of marking option of Shri Kailash Yadav to be Minister it was found. The Division Bench proceeded to direct the appellant to take a decision to either delete question no. 46 of booklet series ‘C’ or to award the marks to the respondent also and if he came in the merit on awarding of marks then to take further appropriate action as per merit position. We have heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the CA No. 7720 20214 SCC 309. It is his contention that the view taken by the appellant Commission cannot be characterised as palpably perverse. When arriving at such a finding it may not be open in judicial review proceedings to substitute the view taken by the examining body. He would further justify the rationale in the following manner. It was pointed out that so far as the decision to award marks to those candidates who answered question no. 46 by approving option ‘B’ which is Shri Kailash Yadav candidates were given the benefit as the Commission apparently was of the view that the said person was indeed the minister and the answer would have been correct but for his passing away just 12 days prior to the date of the examination. As far as those candidates who did CA No. 7720 2021Per contra learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter if he secured sufficiently high marks that he could secure selection then alone he would get the benefit. More importantly he drew support from another development one Ankur Srivastava and another person filed CA No. 7720 202113 SCC 749. Therein three learned Judges while dealing with the problem of incorrect answers or rather incorrect questions vague questions inter alia held that “It is wholly unjust to give marks to a student who did not even attempt to answer those questions”. He would therefore point out that in the facts of this case the principle is apposite and there is no rationale for the respondent to deny the mark which on all counts he is entitled to 11) The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option ‘B’ to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination In other words as on the date when the examiner settled the question with which we are concerned this is not a case for CA No. 7720 2021We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The CA No. 7720 2021We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place actually none of the answers which were given as options were correct. On the date when the questions were in fact set one answer was correctAs far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answerhas been given one mark. We record this statement. It is stated to be part of the rejoinder 15) In such circumstances we are of the view that in the facts of this case the appellant has made out a case for interference. Appeal is allowed and the impugned judgment stands set aside. No orders as to costs. …. J K.M. JOSEPH …. J PAMIDIGHANTAM SRI NARASIMHA New Delhi December 14 2021

Powers of Section 482 CrPC should only be used in “Rarest of the rare” cases: Bombay High Court

The judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise under Section 482 of the CrPC. The Bombay High Court (Nagpur branch) gave the judgment citing the above stated reasons in the case of Saumaya Sanjay Khandare & Anr vs. State of Maharashtra [CR.A.No.709 of 2020] by the full bench comprising of Hon’ble Justice AS Chandurkar, Justice Vinay Joshi and Justice NB Suryawanshi. In the instant case, the accused was convicted under Sec. 354D and 506 of IPC along with Sec. 3(1)(xi) of SC ST Act, 1989.Applicants had argued that the HC in the exercise of powers under Sec. 482 CrPC, even after the conviction, can end the dispute if a settlement has been reached between the accused and the complainant. It was argued that once the requirements of Sec. 482 are met so as to prevent an abuse of power of the any Court or to secure the ends of justice, the proceedings can be quashed notwithstanding the fact that the conviction order was already passed against the accused. In this regard, the Bench was deciding the extent of powers exercisable under Section 482 in view of conflicting judgments. A Division Bench at Aurangabad had held in Udhav Kisanrao Ghodse vs. State of Maharashtra that since the parties had decided to maintain good and cordial relations in future and such an attitude was beneficial to the society, inherent powers under Section 482 were required to be invoked and this judgment was followed in Ajmat Khan & Anr  vs. State of Maharashtra. In this judgment, it was observed that the power under Section 482 for quashing the proceedings could be exercised even after conviction of an accused. As a result, in the instant case, it was observed that exercise of power under Section 482 should be exercised rarely rather than being invoked frequently. The HC refused to agree with the proposition that in cases where a settlement has reached between convict and complainant, the conviction can be quashed by invoking inherent powers. It was stated that “the inherent power could not be invoked merely on the ground of settlement between the parties”. Although, the remedy of challenging the order of conviction is available to the accused by way of an appeal, any compromise entered into post-conviction for a non-compoundable offence cannot by itself result in acquittal of the accused.

on 13 03 2018 on 22 03 (1) Cri. Appln. No. 03818 IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH AT AURANGABAD. Criminal Application No. 03818 District : Parbhani 1.Udhav s o. Kisanrao Ghodse Age : 54 years Occupation : Labourer.2.Kundlik s o. Sheshrao Kadam Age : 36 years Occupation : Agriculture. 3.Shantabai w o. Udhav Ghodse Age : 44 years Occupation : Household.All R o. Runj Taluka Purna .. ApplicantsDistrict Parbhani. versus1.The State of Maharashtra Through Police Station Purna Taluka Purna Dist. Parbhani.2.Meenabai Manikrao Kadam Age : 28 years Occupation : Household .. Non­applicantsR o. Runj Taluka Purna (2) Cri. Appln. No. 03818 CORAM : PRASANNA B. VARALE & SMT. VIBHA KANKANWADI JJ. DATE : 26TH FEBRUARY 2018 JUDGMENT:01.By this application the applicants have invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure 1973 in order to allow the compromise that has been arrived at between them and the original informant. 02.Few relevant facts of the case are required to be considered. It was the prosecution story that the informant who was resident of Runj Taluka Purna District Parbhani gave first information report stating that she went to her agricultural land to collect Udid crop at about 11.00 a.m. on 03.09.2012. After one and half hours her husband joined her in the agricultural work. There was a heavy rainfall at about 02.30 p.m. and therefore she went into the hut. Original accused no.01 i.e. present applicant no.01 followed her in the hut and after he found that the informant was alone he caught hold of her hands and started to manhandle her. He gagged her mouth and asked him to sit since there is nobody else. He was trying to outrage her modesty. However somehow she rescued her mouth and alarmed her husband. Her husband came towards her. When accused saw him coming he ran away from the spot. After completing the work when she and her husband went towards house at about 07.00 a.m. she on 13 03 2018 on 22 03 (3) Cri. Appln. No. 03818 had narrated the incident to her mother­in­law and father­in­law. Her father­in­law and her husband went towards the house of the accused to make enquiry regarding the incident. At that time accused started abusing them. Other two accused persons i.e. applicant nos.02 and 03 had beaten the father­in­law of the informant by kicks and fist blows. Accused no.03 applicant no.03 had abused them. Accused no.01 had taken bite of the husband of the informant. The incident was intervened by the witnesses. 03.After registration of the crime the investigation was carried out. The charge­sheet was filed before Judicial MagistratePurna. After the charge was framed the trial was conducted. All the accused have been held guilty of committing offence punishable under Section 323 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1 000 ­ each. In default of payment of fine they have been directed to suffer simple imprisonment for 02 months. Accused no.01 has been convicted for committing offence punishable under Section 447 of the IPC and has been directed to undergo rigorous imprisonment for 03 months and to pay fine of Rs. 1 000 ­. In default of payment of fine he has been directed to suffer simple imprisonment for 02 months. He has been further convicted for offence punishable under Section 354 of the IPC and has been sentenced to suffer rigorous imprisonment for 02 years and to pay fine of Rs. 2 000 ­. In default of payment of on 13 03 2018 on 22 03 (4) Cri. Appln. No. 03818 fine he has been directed to suffer simple imprisonment for 02 months. 04.Being aggrieved by the said judgment and order all the three accused have preferred appeal being Criminal Regular Appeal No. 1113 before Sessions Judge at Parbhani. 05.During pendency of the appeal compromise has arrived at between the informant and accused prsons appellants and a pursis to that effect was filed. 06.It has been contended that since Section 354 of the IPC has now been made non­compoundable the applicants are before this Court. 07.Heard both parties.08.The facts put before us disclose that the present applicants were tried for the offences. They were punished and they have preferred the appeal challenging their conviction. Now the parties have compromised the matter. The other sections under which conviction has been awarded i.e. Sections 323 and 447 of the IPC are compoundable under Section 320 of the Code of Criminal Procedure 1973. Only Section 354 of the IPC on the date of the offence has been made non­compoundable and therefore the applicants have come before this Court to quash the FIR. on 13 03 2018 on 22 03 (5) Cri. Appln. No. 03818 09.It is to be noted that a document called Tadjodpatra has been arrived at and by way of pursis it has been produced before the learned Sessions Judge on 09.11.2017. It has been contended in the said pursis that both the parties are resident of the same village and are of the opinion that they should have good and cordial relations in future also. Because of some misunderstanding the information was given. However now the dispute is resolved. The informant has no objection if the applicants i.e. accused persons are acquitted. 10.A three­Judge Bench of this Court in the matter of Abasaheb Yadav Honmane Vs. State of Maharashtra2 Mah.L.J.856] while dealing with inherent powers of this Court under Section 482 of the Code of Criminal Procedure 1973 vis­a­vis the express bar for compounding of the non­compoundable offences in Section 320(9) of the Code has observed thus :"14. The power of compounding on one hand and quashing of criminal proceedings in exercise of inherent powers on the other are incapable of being treated as synonymous or even interchangeable in law. The conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be the only aspect where they have any commonality is the result of exercise of such power in favour of the accused as acquittal is the end result in both these cases. Both these powers are to be exercised for valid grounds and with some element of objectivity. Particularly the power of quashing the FIR or criminal proceedings by the court by taking recourse to inherent powers is expected to be used sparingly and that too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory upon the court to on 13 03 2018 on 22 03 (6) Cri. Appln. No. 03818 strike a balance between the nature of the offence and the need to pass an order in exercise of inherent powers as the object of criminal law is protection of public by maintenance of law and order. "11.Note of the judgment of this Court in the matter of Abasaheb Yadav Honmanewas taken by the Hon ble Apex Court in the matter of Gian Singh Vs. State of Pubjab and another10 SCC 303] and it has been held by the Hon ble Apex Court thus :"51. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320 abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub sectionof Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner. 52.The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is on 13 03 2018 on 22 03 (7) Cri. Appln. No. 03818 not compoundable under Section 320 of the Code. 53.Section 482 of the Code as its very language suggests saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It beings with the words "nothing in this Code" which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.54.In different situations the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives to prevent abuse of the process of any court orto secure the ends of justice is a sine qua non. 55.In the very nature of its constitution it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised and especially if as a matter of duty required to be done by law it is found impossible to do that thing unless something else not authorised in express terms be also done may also be done then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise the whole idea is to do real complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. 56.It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and on 13 03 2018 on 22 03 (8) Cri. Appln. No. 03818 circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided. 57.Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while on the other hand the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. 58.Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable it does so as in its opinion continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored securing the ends of justice being the ultimate guiding factor. No doubt crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well being of the society and it is not safe to leave the crime doer only because he and the victim have settled the dispute amicably or that the victim has been paid comkpensation yet certain crimes have been made compoundable in law with or without the permission of the court. In respect of serious offences like murder rape dacoity l etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity the settlement between the offender and the victim can have no legal sanction at all. However certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil mercantile commercial financial partnership or such like transactions or the offences arising out of matrimony particularly relating to dowry etc. or the family dispute where the wrong is basically to the victim and the offender and the victim have on 13 03 2018 on 22 03 (9) Cri. Appln. No. 03818 settled all disputes between them amicably irrespective of the fact that such offences have not been made compoundable the High Court may within the framework of its inherent power quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed. "12.Therefore after applying the parameters it is to be noted that the parties in the present case have come with a case that they want to maintain good and cordial relations in future. Such thought is necessary for the society and therefore we find this to be a fit case where inherent powers of this Court under Section 482 of the Cr.P.C. are required to be invoked. This is a fit case where the present applicants need not be asked to prosecute their appeal against conviction. 13.Hence the following order :­(a)The application is hereby allowed.(b)Non­applicant no.02 informant is allowed to compound the offences punishable under Sections 354 447 and 323 of the Indian Penal Code against all the applicants. (Court No.2) Purna District Parbhani on 12.11.2013 on 13 03 2018 on 22 03 (10) Cri. Appln. No. 03818 against the applicants is hereby set aside. They stand acquitted of all the aforesaid offences. ( Prasanna B. Varale ) JUDGE JUDGE...........puranik CRIAPPLN382.18

The provision of disqualification based on having more than two living children have been held to be not ultra vires: Jharkhand High Court

The clause of disqualification based on possessing more than two living children has been ruled unconstitutional when it pertains to disqualification from holding 4the office of Sarpanch, Up-Sarpanch and Panch. if the person having more than two living children. The judgement was passed by the High Court of Jharkhand in the case of Rajesh Kumar Verma vs The State of Jharkhand & Anr. [W.P.(C) No. 539 of 2018] by Single Bench consisting of Hon’ble Justice Sujit Narayan Prasad. The case has been filed seeking To declare Rule 3.14 of Jharkhand Municipal Elected Representative Rules, 2017 ultra vires the Constitution of India and thereby to quash and set aside the same, and to also declare section 18 (1) (n) of Jharkhand Municipal Act, 2011 ultra vires the Constitution of India. During the pendency of this writ petition, the operation, implementation and execution of the provisions enshrined in Section 18 (1) (n) of the Jharkhand Municipal Act, 20 May kindly be stayed. Learned counsel for the writ petitioner has submitted that the provision as contained in Rule 3.14 of Jharkhand Municipal Elected Representative Rules, 2017 ultra vires the Constitution of India which provides the provision of disqualification of councillors if he has more than two living children, provided that a person having more than two children on or up to the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified. The petitioner will not be able to contest the municipal election of the Councilors of the Municipal Corporation and as such, he will be deprived of contesting the election on the pretext of a law that ultra vires the Constitution of India. Learned counsel for the respondent has submitted that the issue has already been decided by the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and Others, “wherein the provision of disqualification based on having more than two living children have been held to be not ultra vires, therefore, submission has been made that the instant writ petition is fit to be dismissed based on the ratio laid down by the above-stated case.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5318 Rajesh Kumar Verma son of Late Ram Kumar Verma aged about 38 years resident of Ved Narayan Lane Kachahri Road P.O G.P.O P.S Kotwali Town and District Ranchi. …. Petitioner 1.The State of Jharkhand through the Chief Secretary having office at Project Building Dhurwa P.O. & P.S. Dhurwa Town and District 2.The Principal Secretary Urban Development and Housing Department Government of Jharkhand having office at Project Building Dhurwa P.O. & P.S. Dhurwa Town and District Ranchi. …. Respondents HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE THE CHIEF JUSTICE CORAM: For the Petitioner For the Respondents Oral Judgment: Order No.12 Dated: 15th March 2021 Mr. Manoj Tandon Advocate Mr. Piyush Chitresh A.C to A.G. 1. With consent of the parties hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The instant writ petition is under Article 226 of the Constitution of India praying for the following reliefs: “(i) To declare Rule 3.14 of Jharkhand Municipal Elected Representative Discipline and Appeal) Rules 2017 ultra vires the Constitution of India and thereby to quash and set same as notified by Notification No.01 Policy Decision 10 2016 U.D.H 5421 Ranchi dated 22.8.2017 and Notification No. 01 Policy Decision 10 2016 U.D.H 6669 Ranchi dated 30.10.2017issued under the pen and signature of respondent no.2. ii) To also declare section 18(n) of Jharkhand Municipal Act 2011 ultra vires the Constitution of iii) During the pendency of this writ petition the operation implementation and execution of provisions enshrined in Section 18 (n) of the Jharkhand Municipal Act 2011 and both Notifications dated 22.8.2017 and 30.10.2017 to the extent of Rule 3.14 may kindly be stayed.” 3. Mr. Manoj Tandon learned counsel for the writ petitioner has submitted that the provision as contained in Rule 3.14 of Jharkhand Municipal Elected RepresentativeRules 2017 ultra vires the Constitution of India as has been notified vide notification dated 22.08.2017 which provides the provision of disqualification of councilors if he has more than two living children provided that a person having more than two children on or up to the expiry of one year of the commencement of the Act shall not be deemed to be disqualified. According to the learned counsel for the petitioner in view of such provision the petitioner will not be able to contest the municipal election of the Councilors of the Municipal Corporation and as such he will be deprived from contesting the election on the pretext of a law which ultra vires the Constitution of India. According to the learned counsel the provision as contained under Section 18(1)of the Jharkhand Municipal Act 2011 is in the teeth of Section 590 of the Jharkhand Municipal Act 2011 and further based upon unreasonable classification and therefore the same is fit to be held ultra vires. 4. Mr. Piyush Chitresh learned A.C to learned Advocate General has submitted that the issue has already been decided by the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and Others reported in 8 SCC 369 wherein the provision of disqualification on the basis of having more than two living children have been held to be not ultra vires therefore submission has been made that the instant writ petition is fit to be dismissed on the basis of the ratio laid down by the Hon’ble Apex Court in the case of Javed and Others vs. State of Haryana and Otherspertains to disqualification from holding the office of Sarpanch Up Sarpanch and Panch if the person having more than two living children. The Hon’ble Apex Court while dealing with the issue has been pleased to hold that such provision of debarment is not ultra vires. 7. We therefore are of the view that the instant writ petition deserves to be dismissed on the basis of the judgment of the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and 8. Accordingly the instant writ petition is dismissed. Dr. Ravi Ranjan C.J.) Sujit Narayan Prasad J.) Others (supra). Saket

Factors which imply that the accused might flee from justice must not be neglected: Delhi High Court

If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. This was held by Hon’ble Justice Subramonium Prasad in the case of State Vs. Akshay Dagar Alias Shakti [CRL.M.C. 612/2021] on the 16thof August before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, on 02.05.2018, at about 9:55 AM, a PCR call was received regarding firing on a white coloured Swift car near Shiv Mandir, Firni Road, Village Bamnoli, Delhi. The same was recorded vide DD No.24A. Police team reached the spot where they found that a white coloured Swift car bearing No. DL3CAH-1805 had hit an electric poll, both the front window glasses of the car were broken and two injured persons were lying in the front seat of the car. The person on the driving seat was identified as Sandeep Deswal @ Sandeep Mental and another person was identified as Pawan Mann @ Pauna. In her statement under Section 161 Cr.P.C, the mother of the deceased revealed that the deceased was a property She revealed that she knows Rajiv Dagar @ Monu and the respondent herein as they have visited their house multiple times. She stated that Rajiv Dagar used to come to their house in a Silver coloured Santro Car which belonged to Kamlesh. It was revealed by the mother of the deceased that a dispute arose between the deceased and Rajiv Dagar regarding the development of flats and the cost incurred therein. She also revealed that two days prior to the incident, Rajiv Dagar and the respondent came to their house and threatened the deceased with dire consequences. She states that Rajiv Dagar threatened the deceased with dire consequences if the accounts are not settled by the next day. The mother of the deceased saw the CCTV footage and she identified the two persons who were on the motorcycle. She identified the person who was riding the motorcycle as Rajiv Dagar and the person who was sitting pillion was identified as the respondent herein. The mother of the deceased also stated that the Santro Car seen in the CCTV footage belongs to Kamlesh. Charges were framed and trial has begun. PW-1 and PW-2 were examined but they both turned hostile. After they turned hostile the respondent filed an application for bail, being Bail Application No.3198/2020. The learned Additional Session Judge vide order impugned herein granted bail to the respondent herein. The learned ASJ granted bail to the respondent herein on the ground that the respondent herein was in custody since 18.10.2018, two star witnesses (eye-witnesses) have not supported the case of the prosecution, nothing incriminating has been brought on record by the aforesaid prosecution witnesses, there is no apprehension of the accused tampering with evidence because the CCTV footage and the FSL are scientific evidence and therefore there is no possibility of tampering them and that in the present situation created due to Corona pandemic, the respondent herein warrants grant of bail. It is this order which is under challenge in the instant petition. The counsel for the petitioner state submits that the respondent is accused of a heinous offence under Section 302 IPC which entails the maximum punishment i.e. death or imprisonment for life. He was absconding and he was declared as a proclaimed offender and was only arrested only in October, 2018 in some other case. The learned APP for the State has brought the attention of this Court to an application filed on 17.10.2019, wherein the witnesses had filed an application for exemption from personal appearance on the ground that they are being threatened and there is a likelihood that the witnesses will be attacked by the accused persons. The learned APP for the State submits that none of these factors have been considered by the learned Additional Session Judge before granting bail to the respondent herein and the order grating bail, therefore, should be set aside. The learned counsel for the respondent submits that, the star witnesses have not supported the case of the prosecution. He states that other than the disclosure statement there is nothing to connect the respondent with the crime. He states that the fact that the respondent went with his cousin to the house of the deceased cannot connect him directly with the case in the absence of any evidence and therefore, no prima facie case is made out against the respondent herein. The learned judges heard the submissions of both the parties and relied on the judgement in Kanwar Singh Meena V. State of Rajasthan, (2012) 12 SCC 180, wherein, “Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 612 2021 IN THE MATTER OF: Date of decision: 16th AUGUST 2021 ..... Petitioner Through Ms. Meenakshi Chauhan APP for the SUBRAMONIUM PRASAD J. AKSHAY DAGAR ALIAS SHAKTI Through Mr. Anirudh Yadav Advocate ..... Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD The State seeks to challenge the order dated 04.12.2020 passed by the learned Additional Sessions Judge 03 Dwarka granting bail to the respondent herein in FIR 125 2018 dated 02.05.2018 registered at Police Station Sector 23 Dwarka for offences under Sections 302 120B and 201 IPC read with Sections 25 27 54 and 59 of the Arms Act. The facts in brief of this case are as under: a) On 02.05.2018 at about 9:55 AM a PCR call was received regarding firing on a white coloured Swift car near Shiv Mandir Firni Road Village Bamnoli Delhi. The same was recorded vide DD No.24A. Police team reached the spot where they found that a white coloured Swift car bearing No. DL3CAH 1805 had hit an CRL.M.C. 612 2021 electric poll both the front window glasses of the car were broken and two injured persons were lying in the front seat of the car. The person on the driving seat was identified as Sandeep Deswal @ Sandeep Mental and another person was identified as Pawan Mann Pauna. There were multiple gun shot injuries on the head and arms of both the persons. There were bullet marks on the car and several empty cartridges were found at the place of the incident. On inspection a country made pistol was found inside the car with five live cartridges. FIR No.125 2018 was registered at Police Station Sector 23 Dwarka for offences under Sections 302 120B and 201 IPC read with Sections 25 27 54 and 59 of the Arms Act. b) Statement of the person who made the call to the Police i.e. Padam Singh and another person Mahipal Singh were recorded under Section 161 Cr.P.C. c) During the course of investigation and based on the statement of the said two persons the route of the Swift car was analysed. The witnesses had stated that a silver coloured Santro Car bearing No. DL8CAF0943 and a black colour Discover bike were also seen following the Swift Car. On analysing the route of the vehicles a CCTV camera was found installed outside Lochav Estate Village Banmoli. On examination of the CCTV footage it was found that as told by the witnesses a silver coloured Santro Car bearing No. DL8CAF0943 and a black coloured Discover bike were seen passing the estate. On investigation the motorcycle which was seen in the CCTV footage was found to be abandoned near Dada Mota Mandir. The motorcycle matched the description as provided by the two eye CRL.M.C. 612 2021 witnesses. The photographs of the motorcycle were taken and the chance prints were developed. d) The statements of the mother of the deceased Darshana Devi and wife of the deceased Sumitra Devi were recorded under Section 161 Cr.P.C. In her statement under Section 161 Cr.P.C the mother of the deceased revealed that the deceased was a property dealer and was constructing a flat near Pochanpur Extension Delhi in partnership with one Kamlesh. She revealed that she knows Rajiv Dagar @ Monu and the respondent herein as they have visited their house multiple times. She stated that Rajiv Dagar used to come to their house in a Silver coloured Santro Car which belonged to Kamlesh. It was revealed by the mother of the deceased that a dispute arose between the deceased and Rajiv Dagar regarding the development of flats and the cost incurred therein. She also revealed that two days prior to the incident Rajiv Dagar and the respondent came to their house and threatened the deceased with dire consequences. She that Rajiv Dagar the deceased with dire consequences if the accounts are not settled by the next day. The mother of the deceased saw the CCTV footage and she identified the two persons who were on the motorcycle. She identified the person who was riding the motorcycle as Rajiv Dagar and the person who was sitting pillion was identified as the respondent herein. The mother of the deceased also stated that the Santro Car seen in the CCTV footage belongs to Kamlesh. CRL.M.C. 612 2021 f) The wife of the deceased also gave her statement under Section 161 Cr.P.C wherein she has reiterated her statements as given by the mother of the deceased. g) During the course of the investigation on 03.05.2018 Arjun Dalal @ Monu was arrested and the silver coloured Santro car was recovered from his possession. Chance prints were developed. h) According to the prosecution the said Arjun Dalal @ Monu was interrogated and he disclosed that he was approached by Rajiv Dagar to kill Sandeep Deswal the deceased. The disclosure statement of Arjun Dalal @ Monu revealed that Rajiv Dagar gave him Rs.1 00 000 for the work. He stated that at Pochanpur he was joined by one Manirul and the respondent herein. He revealed that they brought the fire arms for killing the deceased. He revealed that a motorcycle was stolen and a recce of the place where the plan was to be executed was conducted by the accused. He revealed that the respondent herein and Rajiv Dagar were on the motorcycle whereas Arjun Dalal and another co accused Manirul were in the Santro car. It was disclosed that as soon as the Swift car driven by the deceased was spotted they cornered the car and started firing upon the car and fled from the spot. i) Rajiv Dagar was arrested on 05.06.2018. The respondent was absconding. He was declared a proclaimed offender and was arrested in October 2018 in another case. One revolver was recovered from his instance. It is pertinent to mention here that the respondent had been arrested in FIR No.205 2015 registered at Police Station Dwarka Sector 23 for offences under Sections 302 34 IPC and CRL.M.C. 612 2021 Sections 25 27 54 59 of the Arms Act. The respondent was subsequently arrested in the present FIR on 25.10.2018. Charge sheet was filed before the arrest of the respondent and a supplementary charge sheet was filed after the arrest of the respondent under Sections 302 120B and 201 IPC read with Sections 25 27 54 and 59 of the Arms Act j) Charges were framed and trial has begun. k) PW 1 and PW 2 were examined but they both turned hostile. After they turned hostile the respondent filed an application for bail being Bail Application No.3198 2020. The learned Additional Session Judge vide order impugned herein granted bail to the respondent herein. l) The learned ASJ granted bail to the respondent herein on the ground that the respondent herein was in custody since 18.10.2018 two star witnesseshave not supported the case of the prosecution nothing incriminating has been brought on record by the aforesaid prosecution witnesses there is no apprehension of the accused tampering with evidence because the CCTV footage and the FSL are scientific evidence and therefore there is no possibility of tampering them and that in the present situation created due to Corona pandemic the respondent herein warrants grant of bail. It is this order which is under challenge in the instant petition. Heard Ms. Meenakshi Chouhan learned APP for the State and Mr. Anirudh Yadav learned counsel for the respondent and perused the material on record. CRL.M.C. 612 2021 4. Ms. Meenakshi Chouhan learned APP for the State submits that the Trial Court has failed to note the following factors which ought to have been considered by the learned Additional Session Judge before granting bail to the respondent herein: a. The respondent is accused of a heinous offence under Section 302 IPC which entails the maximum punishment i.e. death or imprisonment for life. b. That the respondent was absconding and he was declared as a proclaimed offender and was only arrested only in October 2018 in some other case. c. The wife and mother of the deceased have attributed motive to the petitioner. They have identified the Santro car and the motorcycle used in the crime. They also identified the petitioner as the pillion rider on the motorcycle. d. The learned APP for the State has brought the attention of this Court to an application filed on 17.10.2019 wherein the witnesses had filed an application for exemption from personal appearance on the ground that they are being threatened and there is a likelihood that the witnesses will be attacked by the accused persons. The learned Court has directed the concerned SHO to make necessary arrangements for the witnesses to appear on the next date of hearing. e. The learned APP for the State submits that apart from the present case the respondent is involved in three other cases namely: FIR No.205 2015 registered at Police Station Dwarka Sector 23 for offences under Sections 302 34 IPC and Sections 25 27 54 59 of the Arms Act. CRL.M.C. 612 2021 FIR No.117 2016 registered at Police Station J.P. Kalan for offences under Section 336 IPC and Sections 25 247 of the Arms Act. FIR No.16 2018 registered at Police Station Kalkaji for offences under Sections 25 54 59 of the Arms Act. The learned APP for the State submits that none of these factors have been considered by the learned Additional Session Judge before granting bail to the respondent herein and the order grating bail therefore should be set aside. Per contra Mr. Anirudh Yadav learned counsel for the respondent contends that the star witnesses have not supported the case of the prosecution. He states that other than the disclosure statement there is nothing to connect the respondent with the crime. He states that the fact that the respondent went with his cousin to the house of the deceased cannot connect him directly with the case in the absence of any evidence and therefore no prima facie case is made out against the respondent herein. An offence under Section 302 IPC is a heinous offence punishable with life imprisonment or death. The consideration for granting bail under Section 439 Cr.P.C are now fairly well settled and they are: Nature and gravity of the offence which is determined by the punishment for that offence The position and status of the accused with reference to the victim Likelihood of the accused fleeing from justice Tampering with evidence and influencing witnesses. CRL.M.C. 612 2021 It is well settled that an order granting bail ought not to be interfered by the High Court unless there are compelling reasons warranting cancellation of bail. The Supreme Court has time and again laid down the guidelines for cancellation of bail. The Supreme Court in Kanwar Singh Meena V. State of Rajasthan 12 SCC 180 observed as under: “10. Thus Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But while granting bail the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say the gravity of the crime the character of the evidence position and status of the accused with reference to the victim and witnesses the likelihood of the accused fleeing from justice and repeating the offence the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and therefore certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities CRL.M.C. 612 2021 resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material which has no relevance to the question of grant of bail to the accused the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence to flee from justice etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider this court is equally guided by the above principles in the matter of grant or cancellation of “ 11…..As stated in Raghubir Singh case 4 SCC 481 : 1986 SCC 511 : 3 SCR 802] the grounds for cancellation under Sections 437(5) and 439(2) are identical namely bail granted under Section 437(1) or or Section 439(1) can be cancelled wherethe accused misuses his liberty by indulging in similar criminal activity interferes with the course of investigationattempts to tamper with evidence or witnesses threatens witnesses or indulges in similar activities which would hamper smooth investigation there is likelihood of his fleeing to another country attempts to make The Supreme Court in Aslam Babalal Desai v. State of Maharashtra reported as4 SCC 272 has observed as under: CRL.M.C. 612 2021 himself scarce by going underground or becoming unavailable to the investigating agency attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.” In the facts of the present case the learned Additional Sessions Judge has failed to consider the fact that the respondent was absconding for five months and had been declared as a proclaimed offender. He was arrested in some other case and later arrested in the case. Therefore his chances of fleeing from justice cannot be ruled out. He has failed to consider that there is one more case against the respondent wherein he is accused of committing an offence under Section 302 IPC. The learned Additional Session Judge also failed to consider the fact that the mother and the wife of the deceased have moved an application in the Trial Court and have sought protection and protection has been granted to them by the learned ACMM vide order dated 18.07.2018. The learned Additional Session Judge failed to appreciate that the murder of the deceased was well planned and well orchestrated. The learned Trial Court has failed to take into account the vital factors which have to be considered while granting bail to the accused warranting interference from this Court. 11. With these observations the order dated 04.12.2020 passed by the learned Additional Sessions Judge 03 Dwarka granting bail to the respondent herein is set aside and the bail of the respondent stands cancelled. CRL.M.C. 612 2021 taken into custody. applications if any. AUGUST 16 2021 12. The respondent is directed to surrender within one week before the concerned Jail Superintendent failing which the respondent is directed to be 13. Accordingly the petition is disposed of along with the pending SUBRAMONIUM PRASAD J. CRL.M.C. 612 2021

The status quo in religious demographic profile may have to be maintained. – Madras High Court

A critical or even a harsh statement pertaining to religion or religious beliefs coming from a rationalist or a reformist or an academic or an artist would stand on a different footing altogether. The shield of fundamental right guaranteed under the Constitution under Article 19(1)(a) would be available to them. These were observed by the bench of Honourable Mr. Justice G. R. Swaminathan in the case of Fr. P. George Ponnaiah v. The Inspector of Police & Ors. ( Crl MP(MD)No.5632 of 2021) The crux of the case is petitioner herein is an ordained Catholic diocesan priest. A meeting was organized at Arumanai, a village in western Kanyakumari District, on 18th July 2021 protesting the continued closure of churches in the District owing to pandemic-induced lockdown. The entire speech was video recorded and widely circulated in the social media. In the said video, the petitioner is seen and heard claiming that the network of Catholic priests was tapped by him and his associates to canvass votes in favour of the Dravida Munnetra Kazhagam which won the recently concluded Tamil Nadu Legislative Assembly election. He mocked the Hon’ble Prime Minister, Minister for Hindu Religious and Charitable Endowments Department in the speech. The speech which went viral provoked considerable public outcry. The first respondent belatedly registered Crime No.377 of 2021 against the petitioner and another for the offences under Sections 143, 153A, 295A, 505(2), 506(1) and 269 of IPC and Section 3 of the Epidemic Diseases Act, 1897. The learned counsel appearing for the petitioner at the outset pointed out that the petitioner had circulated a video expressing his regret and clarifying that his words were not intended to hurt the religious sentiments of the Hindus. He submitted that the offending speech must be read in its entirety. He added that Bharat Mata and Bhuma Devi are not legal entities. He relied on the decisions of Bijoe Emmanuel and others v. State of Kerala and ors(1971 Crl.LJ 1773) , Lalai Singh Yadav and anr vs. State of U.P (1971 Crl.LJ 1773) The learned counsel appearing for one of the intervenors quoted the words by Lord Steyn in R v. Secretary of State for the Home Department, Ex parte SIMMS and another, ((1999) 3 WLR 328) “the value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value” One cannot be permitted to give vent to hate speech. He drew the court’s attention to the recent decision of the Hon’ble Apex Court in Amish Devgan v. UOI  ((2021) 1 SCC 1). The court defined hate speech as a form of expression through which the speaker primarily intends to vilify, humiliate or incite hatred against the targets. Its content has more to do with the expression, language and message which should be to vilify, demean and incite psychosocial hatred or physical violence against the target group. He submitted that applying the aforesaid yardstick, the speech in question would qualify as hate speech and hence, not entitled to protection under Article 19(1)(a) of the Constitution. The bench of Honourable Mr.Justice G.R.Swaminathan observed and stated in the case that  “The persons concerned voice their opinions or give vent to their expressions in their capacity as satirists. On the other hand, an evangelist like the petitioner cannot claim a similar privilege. He cannot insult or outrage others’ religion or their religious beliefs and still claim immunity from the application of Section 295A/153A/505(2) of IPC. This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator. The targeted religionists are bound to take offence as they fear potential harm to their interests and well-being. In such an ambience, the Newton’s third law, “every action has an equal and opposite reaction”, may start operating. The State cannot remain a mute spectator in such situations. To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. The offending speech of the petitioner prima facie attracts the offences under Sections 153A, 295A and 505(2) of IPC. However, the offences under Section 143, 269 and 506(1) of IPC and Section 3 of Epidemic Diseases Act, 1897 are not made out. The impugned FIR is quashed to this limited extent as far as the petitioner is concerned. This criminal original petition is partly allowed. Connected miscellaneous petition is closed.”

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 07.01.2022CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl OP(MD)No.110221andCrl MP(MD)No.56321Fr.P.George Ponnaiah ... Petitioner Accused No.2Vs.1.The Inspector of Police Arumanai Police Station Kanyakumari District Kanyakumari. ... 1st respondent complainant2.Samuvel Sub Inspector of Police Arumanai Police Station Kanyakumari District Kanyakumari. ...2nd respondent defacto complainant 3.R.Kumerasadas ... 3rd respondent(3rd respondent was impleaded vide court order dated 28.09.2021)4.Ilamparuthi ...4th respondent(4th respondent was impleaded vide court order dated 05.01.2022)Prayer: Criminal Original Petition filed under Section 482 of Cr.Pc to call for the records pertaining to the First Information Report in Crime No.3721 dated 20.07.2021 and quash the same as illegal as against the petitioner alone. 1 31 https: www.mhc.tn.gov.in judis For Petitioner : Mr.T.Lajapathi RoyFor Respondents : Mr.E.Antony Sahaya Prabhakar Additional Public Prosecutor for R1 and R2 Ms.L.Victoria Gowri for Ms.D.Ramya for R3 Mr.Sricharan Rangarajan for M s.P.Sivachandran for R4ORDER“En Kadhala” in the album “Naatpadu Theral” is yet another Vairamuthu melody. The song celebrates the irrelevance of the age factor to a person in love. However the visualization of the song carries a deeper undertone the relationship between humans and nature. One sees a plant lovingly bowing down and touching the protagonist to comfort her. 2.To me it is not a poetic fancy. It represents the age old tradition of this nation and its people. The five elements of nature are venerated as divine entities prithvi akash agni vaayu and varuna. The earthis worshipped as Bhooma Devi. She is seen as a consort of the divine. The land is described as Punya Bhumi in the works of the various seers. She takes the form of “Bharat Mata” in Bankim 2 31 https: www.mhc.tn.gov.in judis Chandra Chattopadhyay s novel “Ananda Math”. “Bande Mataram” was composed in Her honour. The translation by Maharishi Aurobindo reads as under : “Mother I bow to thee!Rich with thy hurrying streams Bright with thy orchard gleams Cool with thy winds of delight Dark fields waving Mother of might Mother free.Glory of moonlight dreamsOver thy branches and lordly streams Clad in thy blossoming trees Mother giver of ease Laughing low and sweet!Mother I kiss thy feet Speaker sweet and low!Mother to thee I bow.Who hath said thou art weak in thy lands When the swords flash out in twice seventy million handsAnd seventy million voices roarThy dreadful name from shore to shore With many strengths who art mighty and stored To thee I call Mother and Lord!Thou who savest arise and save!3 31 https: www.mhc.tn.gov.in judis To her I cry who ever her foemen draveBack from plain and seaAnd shook herself free.Thou art wisdom thou art law Thou our heart our soul our breath Thou the love divine the aweIn our hearts that conquers death.Thine the strength that nerves the arm Thine the beauty thine the charm.Every image made divineIn our temples is but thine.Thou art Durga Lady and Queen With her hands that strike and her swords of sheen Thou art Lakshmi lotus throned And the Muse a hundred toned.Pure and perfect without peer Mother lend thine ear.Rich with thy hurrying streams Bright with thy orchard gleams Dark of hue O candid fairIn thy soul with jewelled hairAnd thy glorious smile divine Loveliest of all earthly lands Showering wealth from well stored hands!Mother mother mine!4 31 https: www.mhc.tn.gov.in judis Mother sweet I bow to thee Mother great and free!” “Bande Mataram” became the warcry of the freedom movement. The nation became equated with the Mother Goddess. In the pictorial representation of Abanindranath Tagore She is clad in saffron and dressed like a sadhvi holding a book sheaves of paddy a piece of white cloth and a rudraksha garlandin her four hands. Mahatma Gandhi the father of the nation inaugrated a Bharat Mata temple at Varanasi in 1936. Here She is represented not in the form of an idol but in the form of the map representing undivided India. She has been installed as a Goddess in the precincts of many a Hindu Temple across the country. In Kanyakumari one finds Her in the premises of EsakkiyammanTemple. The legendary freedom fighter Shri.Subramaniya Siva wanted to erect one such temple at Papparapatti in Dharmapuri District. The Government of Tamil Nadu had agreed to fulfil this nearly century old dream. 3.Though She is identified as Durga or Kali and depicted in pictures as standing alone Tamil Poet Mahakavi Subramaniya Bharathi saw Her as the consort of Lord Shiva in one of his many hymns sung in Her praise. She then becomes Parvathi and Ganesha becomes Her 5 31 https: www.mhc.tn.gov.in judis child. The noted intellectual and scholar Shri.Aravindan Neelakandan makes an interesting observation that this association was brought out beautifully in the painting of M.F.Husain made on the occasion of the 50th anniversary of Indian Independence. Bharat Mata is seen therein playing with Ganesha. 4.Shoaib Daniyal in his article in Scroll.in recounts a conversation between Shri.K.M.Munshi and Shri.Aurobindo Ghosh. To the question “how can one become patriotic ” Shri.Ghosh replied pointing to the map of British India on the wall “Do you see this map It is not a map but the portrait of Bharat Mata : its cities and mountains rivers and jungles form her physical body. All her children are her nerves large and small.... Concentrate on Bharat as a living mother worship her with nine fold bhakti”. In the same article the author refers to an incident that took place in Maharashtra Assembly. When a Muslim MLA was challenged to chant “Bharat Mata Ki Jai” he refused.5.It is true that after the tragic partition on the sole ground of religion our founding fathers enacted and adopted a secular constitution which is premised and anchored on civic nationalism. The moment one speaks of civic nationalism one has to concede that there 6 31 https: www.mhc.tn.gov.in judis exists its counter part religious nationalism. To use Taoist imagery they are Yin Yang. The irrepressible Shashi Tharoor would probably comment that the religious nationalism represents the black “Yin” while civic nationalism represents the white “Yang”. He may come out with an unheard of English expression too!. No one in his senses would suggest that only a religious nationalist can be called a patriot. While a civic nationalist believes in India as a secular conception with the Constitution as its guiding light to a religious nationalist India is Bharat Mata. Even to the latter the Constitution has to be the foundational and guiding document. The difference between “Jai Hind” and “Bharat Mata Ki Jai” will be the difference between the two categories. 6.The petitioner herein is an ordained Catholic diocesan priest. A meeting was organized at Arumanai a village in western Kanyakumari District on 18th July 2021 protesting the continued closure of churches in the District owing to pandemic induced lockdown. The entire speech was video recorded and widely circulated in the social media. In the said video the petitioner is seen and heard claiming that the network of Catholic priests was tapped by him and his associates to canvass votes in favour of the Dravida Munnetra Kazhagam which won the recently concluded Tamil Nadu Legislative Assembly election. He mocked the 7 31 https: www.mhc.tn.gov.in judis Minister for Hindu Religious and Charitable Endowments Department in the following words : “It does not matter how many temples you renovate and consecrate. No Hindu no devotee of Mandaikattu Amman is going to vote for you. If you won then it is the alms we Christians and Muslims have thrown to you. You won not because of your talents”.After such boast he then directs his ire at Shri.M.R.Gandhi who was elected as MLA on a BJP ticket. Shri.M.R.Gandhi is known to walk barefoot out of respect for Mother Earth. The petitioner mocks him in the following words : “But we wear shoes. Why Because the filth of Bharat Mata should not contaminate us. The Tamil Nadu government has given us free footwear. This bhumadevi is dangerous you could catch scabies from it.” He then holds out the following warning : “We are now majorityfrom 42 per cent we have crossed 62 per cent. Soon we would be 70 per cent. You cannot stop us. I am saying this as a warning to my Hindu brothers”. He attacks the Hon ble Prime Minister and the Hon ble Home Minister by holding out a grim prophecy : 8 31 https: www.mhc.tn.gov.in judis “The last days of Modi are going to be pathetic. I give it in writing. If the God we worship is a true living God the history should see Modi and Amit Shah being eaten by dogs and worms.”7.The speech which went viral provoked considerable public outcry. The first respondent belatedly registered Crime No.3721 against the petitioner and another for the offences under Sections 143 153A 295A 505(2) 506(1) and 269 of IPC and Section 3 of the Epidemic Diseases Act 1897. To quash the FIR this petition has been filed. Two public interested individuals have intervened to oppose the prayer made by the petitioner. 8.The learned counsel appearing for the petitioner at the outset pointed out that on 20.07.2021 the petitioner had circulated a video expressing his regret and clarifying that his words were not intended to hurt the religious sentiments of the Hindus. He submitted that the offending speech must be read in its entirety. If so done one can conclude that the petitioner only wanted to voice his feelings in support of minority rights and interests and that he had no intention to create disharmony or enmity between two groups. The venue was a church ground which belonged to the first accused. The attendees were 9 31 https: www.mhc.tn.gov.in judis Christians and Muslims. Since the Churches continued to remain closed the petitioner felt frustrated that the recently elected legislators were doing nothing in the matter. Three of the MLAs are Christians and the petitioner was only mocking them. The petitioner did not circulate the video containing the offending speech. The learned counsel would also contend that leaders like Dr.Ambedkar and Shri.E.V.Ramasamy had criticized and commented about Hindu religion in far harsher terms and that therefore no exception can be taken to what the petitioner said. He added that Bharat Mata and Bhuma Devi are not legal entities. He relied on the decisions reported in AIR 1987 SC 7481971 Crl.LJ 17731971 Crl.LJ 3242007 Crl.LJ 11955 SCC 600of the Constitution the court should always lean in favour of free speech. He added that even if the words uttered by the petitioner may not be in good taste they would not amount to an offence. He called upon this Court to quash the impugned FIR. 10 31 https: www.mhc.tn.gov.in judis 9.The learned Additional Public Prosecutor as well as the learned counsel appearing for the intervenors submitted that the offences set out in the FIR have been clearly made out and that there is no merit in this petition. 10.Shri.Sricharan Rangarajan the learned counsel appearing for one of the intervenors submitted that “the value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value”3 WLR 328). One cannot be permitted to give vent to hate speech. He drew the court s attention to the recent decision of the Hon ble Apex Court reported in1 SCC 1of the Constitution. 11 31 https: www.mhc.tn.gov.in judis 11.Ms.Victoria Gowri the learned counsel refuted the contention of the petitioner s counsel that Bharat Mata is not a legal entity by referring to the verse occurring in Vishnupurana composed in 400 BCE.. “Uttaram yat Samudrasya Himadreshchaiva dakshinam Varsham tad Bharatam nama Bharatee yatra santatihi”in Ramayana Lord Ram exclaimed “Janani Janma Bhumischa Svargadapi gariyasi”there is a daily prayer Samudra Vasane Devi Parvata Stana Mannddale Vissnnu Patni Namas Tubhyam Paada Sparsham Kssamasva MeO Devi You Who have the Ocean as Your Garments and Mountains as Your Bosom O Consort of Lord Vishnu Salutations to You Please Forgive the Touch of my Feet on Your Holy Body). She insisted that the religious beliefs of the Hindus have been deliberately and maliciously outraged by the petitioner herein. She called for dismissal of the criminal original petition. 12.I carefully considered the rival contentions and went through the materials on record. Section 143 of IPC is obviously not attracted. The meeting was held in a private place belonging to the first accused. 12 31 https: www.mhc.tn.gov.in judis It was convened to mourn the demise of Fr.Stan Swamy a jesuit priest and a tribal activist who died in judicial custody and to demand the opening of the places of worship. This cannot be an unlawful object. Therefore the attendees including the speakers cannot be called as members of an unlawful assembly. Section 143 of IPC is obviously not attracted. None of them suffered from any infectious disease or contributed to its spread. Hence Section 269 of IPC and Section 3 of Epidemic Diseases Act 1897 also could not have been invoked against the accused. Section 506(1) of IPC will not also be attracted because the speech was made from a platform and no affected person had complained that he felt criminally intimidated. 13.Let me examine if the ingredients of the offence under Section 295A of IPC are present. The said provision reads as under : “Whoever with deliberate and malicious intention of outraging the religious feelings of any class of[by words either spoken or written or or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class shall be punished with imprisonment of either description for a term which may extend toor with fine or with both.]13 31 https: www.mhc.tn.gov.in judis This provision was considered by the Constitution Bench of the Hon ble Supreme Court in Ramji Lal Modi vs. State of U.P. It was held therein that this provision does not penalize any and every act of insult or attempt to insult the religion or the religious beliefs of a class of citizens but only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. On the petitioner s own showing the meeting was convened for the twin purposes mentioned above. There was absolutely no need or necessity to mount a visceral attack on the religious beliefs of the Hindus. It was unwarranted and utterly unrelated to the occasion. That is what makes it deliberate and malicious. The petitioner poked fun at those who walk barefoot out of reverence for Mother Earth. He stated that Christians wear shoes so that they wont catch scabies. He painted Bhuma Devi and Bharat Mata as sources of infection and filth. Nothing can be more outrageous to the feelings of the believing Hindus. Section 295A IPC is attracted when there is attack on the religious feelings and beliefs of any class of citizens. It is not necessary that all the Hindus should feel outraged. If the offending words outrage the religious feelings or beliefs of even a section of Hindus the penal provision would 14 31 https: www.mhc.tn.gov.in judis be attracted. Bhuma Devi is considered as a Goddess by all believing Hindus. I use the expression “believing” because even materialists rationalists and non believers also can be counted as Hindus. I may add tongue in cheek that even the great iconoclast and rationalist Periyar did not cease to be a Hindu. Bharat Mata evokes a deeply emotional veneration in a very large number of Hindus. She is often portrayed carrying the national flag and riding a lion. She is to many Hindus a Goddess in her own right. By referring to Bharat Mata and Bhuma Devi in the most offensive terms the petitioner has prima facie committed the offence under Section 295A of IPC. 14.Section 153A as well as Section 505of IPC are as follows : “Promoting enmity between different groups on ground of religion race place of birth residence language etc. and doing acts prejudicial to maintenance of harmony. Whoeverby words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote on grounds of religion race place of birth residence language caste or community or any other ground whatsoever disharmony or feelings of enmity hatred or illwill between different religious 15 31 https: www.mhc.tn.gov.in judis racials language or regional groups or castes or communities or(b) commits any act which is prejudicial to the maintenance of harmony between different religious racial language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity organizes any exercise movement drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence against any religious racial language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious racial language or regional group or caste or community ]shall be punished with imprisonment which may extend to three years or with fine or with both. “505(2) Statements creating or promoting enmity hatred or ill will between classes Whoever makes publishes or circulates any statement or report 16 31 https: www.mhc.tn.gov.in judis containing rumour or alarming news with intent to create or promote or which is likely to create or promote on grounds of religion race place of birth residence language caste or community or any other ground whatsoever feelings of enmity hatred or illwill between different religious racial language or regional groups or castes or communities shall be punished with imprisonment which may extend to three years or with fine or with both.”A reading of the petitioner s speech as a whole does not leave any one in doubt. His target is the Hindu community. He is putting them on one side and the Christians and Muslims on the other. He is clearly pitting one group against the other. The distinction is made solely on the ground of religion. The petitioner repeatedly demeans the Hindu community. He opened his speech as follows :“I was born into a Hindu family. My grandfather was Hindu. Since he thought it fit that his daughter should leave this gutter he gave her hands in marriage to my Christian father. If not for this marriage I would have been a possessed man ringing bells at some “Sudalaimaadan Swamy” temple. The Christian faith gave us liberation. Hence we shall continue to evangelise this faith.”17 31 https: www.mhc.tn.gov.in judis There is a Devi Temple known as “Mandaikkaadu Amman Kovil” in Kanyakumari District. It recently witnessed an unfortunate fire accident. The petitioner has this to say on the incident : “Mandaikkaadu Ammancaught fire owing to deficiencies in “Mantra Puja”. It is understandable. Hechants in Sanskrit. He chants the same Mantra at a wedding which he chants at a funeral. The fire breakout was bound to happen.” In several temples in the erstwhile Travancore region the male devotees have to enter without wearing any upper garment. They wear the traditional Dhoti and wrap themselves with a towel. The petitioner mocks this traditional practice as follows : “Manothangaraj goes to the Suseendiram temple. Can he not enter the temple wearing a shirt Would we allow someone who looks like he’s returned in a towel after bathing in a pond to enter our church We would say “Get out you tweak”. Christianity has taught you to wear a shirt. But you go in without a shirt. Glad you atleast wore a VeshtiNatharcoil. In fact there had been a partial success in that sometimes even in official communications Kanyakumari gets the spelling Kanyakumary and Nagerkovil is officially Nagercoil.In those villages where Hindus have been reduced to minority their lives had been made miserable. From going to school to conducting their festivals they had to face verbal humiliations to physical assaults. At times women got molested. The places of worship were desecrated.I remember how we spent the nights in fear each time a Church bell was ringing.In postcard scenarios the ringing of a church bell meant joy and happiness but in Kanyakumari district of 1980s it meant for the Hindus a call for their destruction. We lived the way Jews lived in a pre Holocaust German village.When Hindus retaliated then with the strong media support only the retaliations and reactions were highlighted in vacuum. But the retaliation was surely forceful and nothing to be proud of.21 31 https: www.mhc.tn.gov.in judis Either way people of the district suffered. But remember the physical violence starts with psychological violence and psychological violence comes from the violence embedded in the propaganda. When one distributes a pamphlet in public space equating another person s way of worship worshiping idols in this case with adultery the gates of physical violence have been opened either as the culmination and fulfilment of this propaganda or as a sequence of retaliation to this propaganda. Hate speech is not religious propaganda. Hate speech is a sin against any truly spiritual tradition.During elections often evangelical and Islamist forces join hands to defeat any pro nationalist political dispensation. This cuts across the parties. When the great Kamaraj contested the evangelical dispensation and Islamist politicians came together and a communal propaganda was launched to defeat one of the greatest leaders of Tamil society. It continued since then even with Hindu majority and non Hindu population having crossed the 35 percent mark. Now the combined non Hindu population had crossed the 50 percent mark and Hindus though are the single largest religious groups are still powerless.But remember one thing. This is not about religion. This is about theo diversity. Hindu majority is the protection of all minorities.Imagine Catholics of Ireland under the protestant UK think of their troubled history. Imagine Ahmadiyas in a Sunni dominated Pakistan. They cannot even call themselves Muslims. Imagine Protestants in a Catholic majority society. Then imagine all these minorities in a Hindu majority society. 22 31 https: www.mhc.tn.gov.in judis You will understand what I am saying. Hindus are not a religious community. They by their very presence guard the minorities and their diverse ways.Destroy that demography because of some perverse delight of destroying a pagan religion and culture then dear minorities you are destroying your real protection your sustained protection and you are cutting the very trunk on which you are sitting.All a Hindu asks is that let there be mutual respect and let us live peacefully without proselytizing. In reality that is what every nation builder of India has said. Destroy that civilizational harmony and equilibrium you are actually destroying yourself.”The thoughts expressed by Shri.Aravindan Neelakandan are not new. They rather echo the recommendations made by Hon ble Mr.Justice P.Venugopal Commission which was constituted following the communal riots that took place in the year 1982 at Mandaikkaadu in Kanyakumari District. 15.The demographic profile of Kanyakumari in terms of religion has seen an inversion. Hindus became a minority in the District since 1980. Though the 2011 census gives an impression that Hindus are the largest religious group with their number pegged at 48.5 per cent that may not represent the ground reality. One can take judicial notice of 23 31 https: www.mhc.tn.gov.in judis the fact a large number of Scheduled Caste Hindus though having converted to Christianity and professing the said religion call themselves Hindus on record for the purpose of availing reservation. Such persons are called as crypto christians. There was even a motion picture based on this themewould be available to them. We need Charles Darwin Christopher Hitchens Richard Dawkins Narendra Dabholkar M.M.Kalburgi and many such others in public life and discourse. Dr.Abraham T Kovoor who wrote the book “Begone Godmen! Encounters with Spiritual Frauds” cannot be said to have outraged the religious beliefs of Hindus. He was speaking as a rationalist. The fact that he belonged to Christianity is utterly irrelevant. When stand up comedians Munawar Faruqui or Alexander Babu perform on stage they are exercising their fundamental right to poke fun at others. Again their religious identity is irrelevant. It is here the “Who ” and “Where ” tests matter. Section 295A of IPC cannot be invoked in such cases because the element of malice is wholly absent. The persons concerned voice their opinions or give vent to their expressions in their capacity as satirists. On the other hand an evangelist like the petitioner cannot claim a similar privilege. He cannot insult or outrage others religion or their religious beliefs and still claim immunity from the application of Section 295A 153A 505(2) of IPC. This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator. The targeted 28 31 https: www.mhc.tn.gov.in judis religionists are bound to take offence as they fear potential harm to their interests and well being. In such an ambience the Newton s third law “every action has an equal and opposite reaction” may start operating. The State cannot remain a mute spectator in such situations. To uphold the sanctity of the Constitution and maintain public order the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. The offending speech of the petitioner prima facie attracts the offences under Sections 153A 295A and 505(2) of IPC. However the offences under Section 143 269 and 506(1) of IPC and Section 3 of Epidemic Diseases Act 1897 are not made out. The impugned FIR is quashed to this limited extent as far as the petitioner is concerned. This criminal original petition is partly allowed. Connected miscellaneous petition is closed. 19.After reading Paul Johnson s book which he describes as “A Biography from a Believer” I must say that I fell in love with Lord Jesus Christ. Did he not say “Beloved let us love one another because love comes from God. Everyone who loves has been born of God and knows God” . Recently the world became poorer on account of the sad demise of Rev.Desmond Tutu the great South African anti apartheid leader. I only wish that the petitioner reads the 29 31 https: www.mhc.tn.gov.in judis moving tribute paid by Shri.Gopalkrishna Gandhi. I am certain that on the Judgment Day God shall admonish the petitioner for having committed an un Christian act. 07.01.2022Index : Yes NoInternet : Yes NoskmNote: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.To:1.The Inspector of Police Arumanai Police Station Kanyakumari District Kanyakumari.2.The Additional Public Prosecutor Madurai Bench of the Madras High Court Madurai. 30 31 https: www.mhc.tn.gov.in judis G.R.SWAMINATHAN J.SKMCrl OP(MD)No.110221andCrl MP(MD)No.5632107.01.202231 31

Writ petition against the Corrigendum by SPSC for amending the Advertisement dismissed by the Court: Hon’ble High Court Of Sikkim

The court dismissed the writ petition against the corrigendum issued by SPSC for amendment of the advertisement printed a month ago. The Hon’ble High Court of Sikkim before Hon’ble Mr. Justice Bhaskar Raj Pradhan held such in the matter of Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr.[W.P. (C) No.13 of 2018]. The facts of the case related to the writ petition wherein the petitioner were aggrieved by the corrigendum which was issued by the SPSC to amend the advertisement released earlier for the invitation of applications to fill up 100 posts of Assistant Professors under the Respondent No. 2 via direct recruitment process. The minimum qualification required was Masters Degree with 55% marks in the respective subjects, 5% relaxation for the exceptional categories. The word ‘M.Phil’ was removed by the corrigendum issued a month later. The corrigendum was challenged by the aggrieved petitioners who had an M. Phil Degree. The petitioner pleaded to remove the corrigendum and allow them to sit for the interview for the Assistant Professor’s post. It was submitted by the petitioners that they were duly qualified for the post. As per the UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment), Regulation 2009, the candidates who have Ph.D. Degree shall be exempted from the minimum eligibility criteria of NET/SLET for the recruitment purpose. Mr. A.K. Upadhyaya, learned Advocate representing the side of the petitioners, relied on the judgment of Sourav Kafley vs. Sikkim Public Service Commission[S.B.WP(C) No.19 of 2013] and said the matter was quite different in the case. Dr. Doma T. Bhutia, additional Advocate general from respondent no. 2 said “..it was for the respondent no.2 to decide what ought to be the minimum educational and other qualifications and the courts cannot interfere in such academic matters.” According to this, the petitioners have no right to direct and dictate the employer as to what are the required qualifications. If the word ‘M.Phil’ remained inserted in the advertisement then it would have gone against the service rules. Hence, the employers needed to issue the corrigendum to correct the mistake Mr. A.K. Upadhyaya further asserted,”..the respondents could not have changed the “rule of the game” once they had started it. This court is afraid that the submission may not be correct since the corrigendum did not change the rule of the game. The service rules which the petitioners, as well as the respondents, are bound by provided for the minimum qualification required of the candidates. The advertisement could not have gone against the service. As the word ‘M.Phil’ appearing in the advertisement went against the grain of the service rules it was incumbent upon the SPSC to have issued the corrigendum.” Instead of proving the qualification in National Eligibility Test, the petitioners argued for their selection because they have been working for a long time on adhoc basis. Also, the petitioner didn’t have the minimum qualification requirement. The Hon’ble Court found ‘no merit in the present writ petition’, stated that the petitioners did not have the necessary qualification as had been required, and hence, dismissed the writ petition, with the application of stay being rendered infructuous.

S.B: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE THE HIGH COURT OF SIKKIM : GANGTOK Civil Extra Ordinary Jurisdiction) W.P.No.118 1. Ms. Dechen Ongmu Bhutia D o Lakpa Tshering Bhutia R o Development Area Opp. Rhenock House East Sikkim 737101. 2. Ms. Bindhya Chettri D o Naina Singh Chettri R o Dambu Dara Namchi South Sikkim 736126. 1. Sikkim Public Service Commission….. Petitioners Through the Secretary Government of Sikkim Old West Point School Gangtok East Sikkim. 2. State of Sikkim Through the Secretary Human Resources Development Department Government of Sikkim Tashiling Gangtok East Sikkim. Application under Article 226 227 of the Constitution of India. Mr. A. K. Upadhyaya Senior Advocate with Ms. Rachhitta Rai Advocate for the petitioners. Mr. Bhusan Nepal Advocate for the Sikkim Respondent No. 1 Service Commission Dr. Doma T. Bhutia Additional Advocate General. Mr. S. K. Chettri Government Advocate for Respondent No. 2. W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. JUDGMENTDated: 01.09.2021 Bhaskar Raj Pradhan J. 1. Heard Mr. A.K. Upadhyaya learned Senior Advocate assisted by Ms. Rachhitta Rai learned counsel for the petitioners. Also heard Dr. Doma T. Bhutia learned Additional Advocate General along with Mr. S.K. Chettri learned Government Advocate for the respondent no.2 and Mr. Bhusan Nepal learned counsel for the respondent no.1 SPSC). Perused the writ petition the counter affidavit as well as the rejoinder. The issue in the writ petition lies in a narrow compass. The petitioner is aggrieved by the corrigendum dated 09.11.2017 issued by the SPSC seeking to amend the advertisement dated 13.10.2017 inviting applications from eligible candidates for filling up 100 posts of Assistant Professors under the respondent no.2 through direct recruitment. The advertisement provided the minimum qualification required for each of the post advertised. The minimum educational qualification for the post of Assistant Professor was Masters Degree in respective subject with 55% marks Tribes Differently abled physically and visually) with NENET SET or Ph.D W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. as per UGC Regulation 2009. The advertisement also “The candidates who have been awarded a M.Phil P.hD Degree prior to July 11th 2009 in accordance with the UGC Regulation 2009 are exempted from the requirement of NET SLET SET subject to the fulfilment of the following conditions: a) Ph.D Degree of the candidate awarded in regular mode b) Evaluation of the Ph.D thesis by at least 02(two) external c) Open Ph.D Viva voce of the candidate had been only examiners d) Candidate had published two research papers from his her PhD work out of which at least one must be in a referred journal. e) Candidate has made at least two presentations in Conference Seminars based on his her Ph.D work. Note.: to as above are to be certified by the Vice Chancellor Pro Vice Chancellor Dean Academic Affairs) DeanNo. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. and to allow them to sit in the interview for the post of Assistant Professor. The petitioners submit that they are duly qualified for the said posts. The advertisement dated 13.10.2017 reflected the minimum educational qualification as per the Sikkim Government College Lecturers’ Recruitment Rules 1992 The service rules) as amended by the Sikkim Government College Lecturers’ Recruitment Rules 2011 whereby item 8 in the schedule was substituted with the following: “8. Educational and other Qualification required for Direct Recruitment: i) The minimum requirements of a good academic record 55% marks or an accredited testshall remain the minimum the appointment of Assistant Professors: followed) at level and qualifying Provided however that candidates who are or have been awarded a Ph.D. degree in accordance with the University Grants Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations 2009 shall be exempted from the requirement of the minimum eligibility condition of NET SLET SET for recruitment and appointment of Assistant Professors or equivalent positions ii) A relaxation of 5% may be provided at the physically and graduate and master‟s Tribe Differently abled W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. visually differently abled) categories for the purpose of eligibility and for assessing record during direct good academic recruitment to teaching positions. The eligibility marks of 55% and the relaxation of 5% to the categories mentioned above are permissible based on only the qualifying marks without including any grace marks iii) A relaxation of 5% may be provided from 55% to 50% of marks to the Ph.d. Degree holders who have obtained their Master‟s Degree prior to 19th September 1991. iv) Appointment of Assistant Professors is meant for all Government Colleges and for local candidates only. All vacancies shall be filled up with proper application of 100 point roster system.” ........................................................” 6. Mr. Bhusan Nepal submits that this amendment vide notification dated 02.09.2011 was pursuant University Grant Commission UGC) amending University Grants Commission Regulations 2000 which was amended by UGC(3rd Amendment) Regulation 2009. The said amendment now provided: W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. “NET SLET shall remain the minimum eligibility condition for recruitment and appointment of Lectures in Universities Colleges Institutions. Provided however that candidates who are or have been awarded Ph.D. Degree in compliance of the “University Grants Commission Regulation 2009 shall be exempted from the requirement of the minimum eligibility condition of NET SLET recruitment and appointment of Assistant Professor or in Universities Colleges 8. Mr. A.K. Upadhyaya relied upon the judgment of this in Sourav Kafley vs. Sikkim Public Service Commission1 dated 23.07.2014. The said judgment of this court pertains to a challenge made by the petitioner therein that he could not be penalised for non compliance of the University Grants Commission Regulation 2009 which was not amended at the relevant time. The issue is quite different in the present matter. 9. Dr. Doma T. Bhutia submits that it was for the respondent no.2 to decide what ought to be the minimum educational and other qualifications and the courts cannot interfere in such academic matters. 10. The advertisement the minimum qualification as required by the service rules. It is for the employer to determine the qualification that may be 1 S.B.WP(C) No.113 W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. required for a particular post. The petitioners as candidates applying to the post of Assistant Professor cannot dictate to the employer from whom they seek employment as to what the qualification should be for their employment. The petitioners have neither challenged the service rules nor the advertisement. The only challenge as stated before was to the corrigendum seeking to remove the word „M.Phil‟ from the advertisement. A perusal of the advertisement makes it clear that the word „M.Phil‟ was incorrectly inserted in the advertisement and if it remained there it would be in conflict with the minimum educational qualification as required by the service rules. In such a situation it was incumbent upon the SPSC to have issued the corrigendum to caste out the mistake it had made in the advertisement and correct it which had mislead the petitioners to approach this court. 11. Mr. A.K. Upadhyaya submitted that the respondents could not have changed the “rule of the game” once they had started it. This court is afraid that the submission may not be correct since the corrigendum did not change the rule of the game. The service rules which the petitioners as well as the respondents are bound by provided for the minimum qualification required of the candidates. The advertisement could not have gone against the service W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. rules. As the word „M.Phil‟ appearing in the advertisement went against the grain of the service rules it was incumbent upon the SPSC to have issued the corrigendum. Merely because it did so it cannot be said that they sought to change the rule of the game. 12. As per the pleadings in the writ petition the petitioner no.1 has a B.A. Degree Master’s Degreein education and M.Phil Degree. The petitioner no.2 has B.A. Degree MastersDegree in history and M.Phil Degree as well. They do not plead that they have either qualified in the National Eligibility Test or any accredited State Level Test SLET SET) which is the minimum requirement for the appointment of Assistant Professors. The petitioners instead argue that since they were working on adhoc basis for a fairly long time it was not fair upon the respondents to seek from them their qualification in the NET SLET SET. They also admit that they do not have a Ph.D. Degree in compliance of the University Grants CommissionRegulation 2009. The petitioners did not have the necessary qualification as required. W.P.No. 118 Dechen Ongmu Bhutia & Anr. Vs. Sikkim Public Service Commission & Anr. 13. Thus this court is of the considered view that there is no merit in the present writ petition which is accordingly dismissed. With the dismissal of the writ petition the application for stay is rendered infructuous and dismissed accordingly. 14. No order as to costs. Bhaskar Raj Pradhan) Judge Approved for reporting: yes. Internet: yes.

P.A. Jacob vs. Superintendent of Police

Introduction: This 1992 case dealt with fundamental rights of speech and expression intricately and at length. The petitioner was stopped from using a loudspeaker at a religious congregation by the withdrawal of approval by the Sub-inspector of Police, and the petitioner alleged violation of his freedom of speech and expression. The Court had to deal with the chapter on fundamental rights intricately and point out the reasonable restrictions any right is subjected to. Facts of the case: Case presented by the Petitioners: Case presented by the Respondents: Judgement: The revered Justice C.S. Nair said that “With great respect, I find it difficult to agree with the view of the Gujarat High Court in Indulal v. State, that freedom of speech includes freedom to use sound amplifiers. In Francis v. Chief of Police, relied on by the Gujarat High Court to deliver the verdict, Pearson L.J. had pointed out that: “Some regulation of the use of loudspeaker is required in order that citizens who do not wish to hear what is being said may be protected.” Therefore there were grounds to not rely blindly on the verdict of the case of Francis v. Chief of Police as jurists had had reservations about that verdict too. Justice Nair referred to US cases too. The use of loudspeakers was not considered in the purview of free speech and expression by the First Amendment of the US Constitution. The same view was reiterated in Lehman v. City of Shaker Heights, a US case, where it was opined that though the petitioner had a right to express his views to those who wish to listen, he had no right to force his message upon an audience incapable of declining to receive it. That apart, the freedom guaranteed is freedom of expression of ideas, not freedom of modes of expression. A loudspeaker is a mechanical device, and it has no mind or thought process in it and therefore is not human. The right of speech or expression is a right accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. Further, it was stated that Article 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Therefore the petitioner was prevented from using loudspeakers. But the Court did not condone the wrongful act of the Superintendent of Police. It was stated that if the Police, charged with the power to regulate the use of loudspeakers under the Kerala Police Act, acts beyond the authority law confers upon him, it would be liable to be interdicted. The permission was denied to the petitioner to use a loudspeaker on the ground that holding meetings with loudspeakers would lead to a law and order situation. This reason appeared to be an after-thought, and for a fact, the hazards imagined by the Sub-Inspector of Police were indeed unreal.  The final verdict was passed stating that in the absence of any valid ground, cancellation of the permission granted to the petitioner was arbitrary. While the petitioner had no fundamental right to use a loudspeaker, he was indeed free to avail amenity of using a loudspeaker in a reasonable manner. The Sub-Inspector of Police had to permit the petitioner to hold meetings with the use of loudspeakers of a box type, for purposes of holding meetings as in which the output from the loudspeaker did not exceed the range necessary to reach a willing audience, confined in a reasonable area.  Conclusion It can be concluded, therefore, that no fundamental right is absolute, and the exercise of one’s rights cannot infringe upon the rights of another. The Court in this case checked the misuse of power at the hands of the Police, as well as reiterated the validity and restrictions on the Fundamental Rights. References

P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Kerala High Court P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Equivalent citations: AIR 1993 Ker 1 Author: C S Nair Bench: C S Nair ORDER Chettur Sankaran Nair J 1. Claiming a fundamental right to use a loud speaker at public meetings to voice his views petitioner seeks to restrain respondents from interfering with the use of a loud speaker by him 2. Petitioner belongs to a denomination of Christianity known as Knanaya Christians. Thomas of Cana came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian Christians as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of Cana came to be known as Knanaya Christians. Some of the Knanaya Christians follow the rites of the Catholic Church while others follow the Marthomite rites. Members of Knanaya denomination do not marry outside that denomination it is said with a view to preserve the purity of stock. This practice is denounced by petitioner. In his view a Knanaya Christian should be free to marry anyone professing the faith of Christianity. To propagate his views in this regard petitioner sought permission to hold meetings using sound amplifiers. Second respondent Sub Inspector of Police granted permissionbut withdrew the permission later apprehending that views of petitioner may incite to violence the conservatives in the Church. Incidentally this apprehension or misapprehension has been proved wrong as a meeting could be held pursuant to interim orders of this Court admittedly without any disturbance 3. Petitioner submits that freedom of speech and expression imply freedom to use amplifying devices and cited the decision of the Gujarat High Court in Indulal v. State AIR 1963 Guj 259 1963Cri LJ 502) in support of his contention. The Gujarat High Court relied on the opinion of the Judicial Committee in Francis v. Chief of Police 2 AER 251 to hold that freedom of speech included freedom to circulate one s views in any manner. The Allahabad High Court however took a contrary view in Rajnikant v. State AIR 1958 All 360 :3rd Edn. page 504) prefers the view of the Gujarat High Court. There is also a decision of this Court in D. Ananda Prabhu v. District Collector 1974 KLT 291 :following the view of the Gujarat High Court. But this Court did riot consider the question whether a fundamental right was involved in the matter of using a loud speaker. The learned Judge assumed that there was a fundamental right and proceeded to consider the reasonableness of a restriction imposed. After referring to the decision of the Gujarat High Court the learned Judge It appears to me that the right conferred by Article 19(1)(a).......have to be understood in the same wayThis was reiterated in U.S. v. Schiwmmer51 Cri LJ 1514) Indian Express NewspapersPvt. Ltd v. Union of India AIR 1986 SC 515 :Hamdard Dawakhana v. The Union of India AIR 1960 SC 554:Reliance Petrochemicals Ltd. v. Proprietors Indian Expresss BombayLtd. AIR 1989 SC 190 :and other cases Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 8. Likewise the right to free speech embodied in the First Amendment in the American Constitution has come for consideration of the United States Supreme Court time and time again Schenck v. United States 249 US 47 Abrams v. U.S. 250 US 616 Gitlow v. New York 268 US 652 Whitney v. California 274 US 357 De Jonge v. State of Oregon 299 US 353 West Virginia State Board v. Barnette 319 US 624 Brandenburg v. State of Ohio 395 US 444 Hess v. Indiana 414 US 105 Lehman v. City of Shaker Heights 418 US 298 Breard v. City of Alexandria 341 US 622 9. In Indian Express NewspapersPvt. Ltd. v. Union of India AIR 1986 SC 515 the Supreme Court of India highlighted the free speech content of Article 19 and its parameters. The right is not absolute. For that matter under the First Amendment restrictions are not alien to the constitutional . scheme. In Roth v. U.S.the Supreme Court held that obscenity is not a protected right. In Mear v. Minnesotaand Times Film Corporation v. Chicagothe United States Supreme Court held that restraints on free speech were constitutionally permissible. Chaplinsky v. New HampshireFeiner v. New YorkDennis v. U.S.Niemotko v. MarylandPoulos v. New HampshireCox v. LouisianaPublic Utilities Commission v. PollakAdderley v Floridaand Grayned v. City of Rockfordare also authorities for the same 10. However wide a right is it cannot be as wide as to destroy similar or other rights in others Jefferson said J.S. Mill said No one has a natural right to commit aggression on the equal rights of another If all mankind minus one were of one opinion and if only one person was of contrary opinion mankind would be no more justified in silencing that one person than he if he had the power would be justified in silencing mankind Freedom or right is not an exclusive matter between the State and a citizen. One man s freedom may destroy another man s freedom. A community of rights not always synchronizing with each other have to be harmonised if any freedom is to be real. In Abrams v. U.S.the United States Supreme Court said Nobody can be compelled to accept any idea... not even of national unity Again in Breard v. City of Alexandriathe Court highlighted the rights of the recipient or captive audience Freedom of speech or press does not mean that one can talk or distribute where when and how one chooses. Rights of those other than the advocates are involved. By adjustment of rights we can have both liberty of expression and an orderly life Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 In this area there are no prophets who can commend attention and for that matter not all propagandists and pamphleteers are prophets 11. The right to speech implies the right to silence. It implies freedom not to listen and not to be forced to listen. The right comprehends freedom to be free from what one desires to be free from What could be more basic to the concept of freedom than this Justice Douglas articulated this right to be let alone is the beginning of all freedoms.. .. When we force people to listen to another s ideas we give the propagandist a powerful weapon. One man s lyric may be another s 12. Free speech is not to be treated is a. promise to everyone with opinions and beliefs to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. Referring to the natural limits of liberty J.S. Mill said Liberty of an individual must be thus far limited he must not make himself a nuisance to other 13. In this background the question whether use of a loud speaker is a fundamental right or part of the complements of a fundamental right has to be viewed 14. With great respect I find it difficult to agree with thp view of the Gujarat High Court in Indulal v Statethat freedom of Speech includes freedom to use sound amplifiers. In Francis v. Chief of PoliceAll England Reports 251) relied pn by the Gujarat High Court to find an absolute freedom Pearson L.J. pointed out that Some regulation of the use of loud speaker is required in order that citizens who do not wish to hear what is being said may be protected This limitation was noticed by A.L. Goodhartthe majority of seven Judges held that sound amplification in public places is not part of the right of free speech. Novacks was convicted under an Ordinance prohibiting use of sound amplifiers in a public street. He challenged the conviction as violative of First Amendment protection. The Court held that restrictions on free speech imposed by the Ordinance were constitutionally permissible. Frankfurter and Jacksonheld that sound trucks in streets can be absolutely prohibited without violating the constitutional right of free speech. Police power of State extends beyond health and morals and comprehends the duty to protect the well being and tranquillity of a community. The Court observed Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 Such distractions would be dangerous to traffic at all hours....the quiet and tranquillity so desirable for city dwellers would be at the mercy of advocates of particular religious social or political persuasions we cannot believe that the right of free speech compel a Municipality to allow such mechanical voice amplification on any of its streets. The right of free speech is guaranteed to every citizen so that he may reach the minds of willing listeners and to do so there must be opportunity to win the attention.......Opportu nity to gain the public ear is not by objec tionably amplified sound on the streets. The preferred position of freedom of speech in a society that cherishes liberty for all docs noi require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in Justice Jackson concurring with Frankfurter J. said I believe that operation of mechanical sound amplifying devices conflicts with quiet enjoyment of home and park and with safe and legitimate use of streets and market places.... Freedom of speech does not in my view include freedom to use sound amplifiers to drown out natural speech of 16. Kovacks v. Coopermarked a sharp dissent from the view then prevailing. The Court overturned the law in Saia v. New Yorkand held that the right to be heard is no more important than the right to be let alone. In Public Utilities Commission v. Pollakthe Court ruled that use of a radio to beam commercial broadcasts in a street car was not protected by the First Amendment. The Court observed the right to be let alone is the beginning of all freedoms. The present case involves a coercion to make people listen The same view was reiterated in Lehman v. City of Shaker Heightsthe Court should lake a commonsense view and be actuated by considerations of practical necessity. A similar view finds expression in Shamsher Singh v. State of Punjab AIR 1974 SC 2192 :in All India Bank Employees case AIR 1962 SC 171 recognition of a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights and so on will lead to a 22. A loud speaker is a mechanical device and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality and not to a mechanical device. One may put his faculties to reasonable uses But he cannot put his machines to any use he likes. He cannot use his machines to injure others Intervention with a machine is not intervention with or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Article 19responses and changes in neurovegetative reactions during sleep show that disturbance of sleep becomes Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 increasingly apparent as ambient noise levels exceed about 35 dbLeq. Noise produces different reactions along the hypothalamohypophyseal adrenal axis including an increase in adenocorti cotropic hormoneaffecting sympathetic division of the autonomic nervous system. Eye dilation bradycardia and increased skin conductance are proportional to the intensity of noise above 70 dB. SPL. Incidence of peptic ulcer is high among noise exposed groups. Noise causes contraction of the flexor muscles of the limbs and the spine and is reckoned as an environmental stress that could lead to non specific health disorders. Exposure to high noise in every day life may contribute to eventual loss of hearingand this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposuresVertigoand balance problems have also been reported due to noise exposure. WHO criteria 12 and Indian Standards 1 S 4954 indicate tolerance levels. J.E. Park and K. Park Text Book of Preventive and Social Medicine 7th Edn page201 also specifies tolerance limits of noise 24. Sound levels generally caused by loud speakers transgress safe limits by a wide margin. Loud speakers have become part of political social religious and cultural life of this country. To allow advocates of various persuasions to commit unlimited aural aggression on unwilling listeners would be to allow them to subjugate the right of life of unwilling listeners to their aggressions. Protests made by sufferers like the student community or sick generally fall on heedless ears. Very recently the Malayala Manorama came out with an editorial against noise pollution. The Indian Medical Association is reported to have protested against high noise output through loud speakers pointing out the risks...............to the extent of reaching a willing audience. One may exercise that amenity in a hall or area reasonably required to accommodate a willing audience There is no right to any amenity beyond this 26. Besides use of a loud speaker cannot be arbitrarily denied only because a fundametal right is not involved. By reason of Article 14 the State and its agencies cannot act arbitrarily. They must adhere to fair play in action. For instance even when a person may not have a fundamental right to enter into a contract with the State the State cannot act arbitrarily in the matter of awarding a contract. Likewise in the matter of denying the use of a loud speaker Police cannot act arbitrarily All State action is amenable to Article 14. To quote Jackson J. in West Virginia State Board v Barnetteagain There are village Hampdens and village tyrants but none who acts under colour of law is beyond the reach of the Constitution Indian Kanoon P.A. Jacob vs The Superintendent Of Police ... on 27 July 1992 If the authority charged with the power to regulate use of loud speakers under the Kerala Police Act acts beyond the authority law confers upon him his action is liable to be interdicted 27. Back to the facts. Permission was denied to petitioner to use a loud speaker on the ground that holding of meetings with loud speakers would lead to a law and order situation on account of the displeasure that it may cause to another group. This reason appears to be an after thought. At the time of granting permission initially no such hazard was envisioned. Nothing suggests that there had been a change of circumstances between the time permission was granted and the time it was cancelled. Quite apart from that an apprehension that one may interfere with a lawful act done by another will be no reason to deny the exercise of that lawful right. If obstruction is offered unlawfully or unreasonably the responsibility of Police is to remove it instead of stopping someone from doing what he may legitimately do. For a fact the hazards imagined by the Sub Inspector of Policeare unreal. By reason of interim orders made by this Court petitioner held meetings using loud speakers and admittedly no law and order problem arose. In the absence of any valid ground cancellation of the permission granted under Ext. F1 is arbitrary. While petitioner has no fundamental right to use a loud speaker he will be free to avail of the amenity of using a loud speaker in a reasonable manner. Second respondent Sub Inspector of Police will permit petitioner to hold meetings with the use of loud speakers of a box type for purposes of holding meetings as indicated in the writ petition. But the output from the loud speaker shall not exceed the range necessary to reach a willing audience confined in a reasonable area. If it exceeds such limits Police will be free to stop the use of loud speakers The writ petition is disposed of as above. No costs I express appreciation of the help rendered by Shri S.V. Balakrishna Iyer as Amicus Curiae Indian Kanoon

Baijnath And Ors. V/s. State of Madhya Pradesh

If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. BRIEF FACTSAND PROCEDURAL HISTORY: The information was lodged by Appellant baijnath, the elder brother of the Appellant No. 2, Shivraj, the father-in-law of the deceased. The information disclosed that on the day of the incident, the family had dinner together and after watching television, retired to the respective rooms for the night. The deceased was married to Rakesh, son of Appellant No. 2. According to the informant, in the next morning she was found dead, hanging from the fan by a ligature.On this information Merg was registered with the Police Station and on the completion of the investigation charge-sheet was laid against the Appellants (in-laws of the deceased) together with Rakesh, husband of the deceased and Prem Bai, wife of the Appellant No. 1. According to the prosecution, the investigation revealed that the husband of the deceased along with the Appellants had been demanding dowry and in pursuit thereof had subjected the deceased to harassment and torture in the proximate past of the incident.At the trial, the learned Additional Sessions Judge concerned framed charges against the accused persons Under Sections 304B and 498A of the Indian Penal Code (Code), which were denied. Subsequently, Rakesh committed suicide on 09.06.1998 by consuming poison and therefore he was deleted from the array of the persons indicted.The Trial Court acquitted the accused persons of the charges holding that in the attendant materials on record, the statutory presumption as envisaged in Section 113B of the Evidence Act, 1892 (“Act, 1892”) was not available for invocation.The High Court however accepted the evidence adduced by the prosecution qua the charge of dowry demand, harassment and cruelty in connection therewith and applied the deeming prescription/statutory presumption contained in Section 304B of the Code and Section 113B of Act, 1892.The Appellants, being aggrieved by the conversion of their acquittal into conviction by the High Court. Under Sections 498A and 304B of the Code filed an appeal. ISSUE BEFORE THE COURT: Whether the High Court was correct in converting the acquittal of the Appellants into conviction under Sections 304B and 498A of Indian Penal Code?Whether the prosecution succeeded in proving the components of the two offences under Section 304B and 498A of the Code against the Appellants beyond reasonable doubt?Whether the presumption under sec 113B could be invoked? RATIO OF THE COURT: A cumulative consideration of the overall evidence on the facet of dowry, left the Court unconvinced about the truthfulness of the charge qua the accused persons. The prosecution in Court’s estimate, has failed to prove this indispensable component of the two offences beyond reasonable doubt as the statements of witnesses were insufficient to prove the guilt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge Under Sections 304B and 498A of the Code against them.The predicament of the prosecution is compounded further by the by its failure to prove, the precise cause of the death of the deceased. It is not clear as to whether the death has been suicidal or homicidal. It is also not proved beyond doubt, the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the body, the benefit of the deficiency in proof, logically would be available to the persons charged.The court observed If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.The court held that the ingredients of both 304B and 498 include cruelty upon the deceased and the presumption under sec 113B can only be invoked once these ingredients have been established by the prosecution beyond a reasonable doubt as was held in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – (2013) 16 SCC 640.The court held that a cumulative consideration of the overall evidence on the facet of dowry, leaves us unconvinced about the truthfulness of the charge qua the accused persons. The prosecution in our estimate, has failed to prove this indispensable component of the two offences beyond reasonable doubt.In all, tested on the overall scrutiny of the evidence as a whole, in Court’s comprehension, the conviction of the accused persons including the Appellants herein on the basis of the materials on record would not be out of risk. To reiterate, the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available Under Section 113B of the Act. DECISION HELD BY THE COURT: The Appellants thus in view of the evaluation made hereinabove are entitled to the benefit of doubt. The appeal is allowed.The impugned judgment and order is set-aside. The Appellants are hereby ordered to be set at liberty forthwith if not wanted in connection with any other case. Let the records of the Trial Court be remitted immediately for the needful.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1097 OF 2016 NO.9718 OF 2014 BAIJNATH & OTHERS .…APPELLANTS STATE OF MADHYA PRADESH ....RESPONDENT JUDGMENT AMITAVA ROY J The appellants the in laws of the deceased Saroj Bai being aggrieved by the conversion of their acquittal into conviction by the High Court under Sections 498A and 304B of the Indian Penal Code seek defeasance of this verdict in the present appeal 2) Heard Mr. Siddhartha Dave learned counsel for the appellants and Mr. Naveen Sharma learned counsel for The genesis of the prosecution case lies in the information lodged by appellant Baijnath the elder brother of the appellant No.2 Shivraj the father in law of the deceased. The information disclosed that on 09.06.1996 at about 8 p.m. the family had dinner together and after watching television retired to the respective rooms for the night. The deceased was married to Rakesh son of appellant No.2. According to the informant in the next morning she was found dead hanging from the fan by a 4) On this information Merg No.20 1996 was registered with the Chanderi Police Station and on the completion of the investigation charge sheet was laid against the appellants together with Rakesh husband of the deceased and Prem Bai wife of the appellant No.1 under Sections 302 304B 498A 201 read with Section 34 of the Code According to the prosecution the investigation revealed that the husband of the deceased along with the appellants had been demanding dowry and in pursuit thereof had Page 2 subjected the deceased to harassment and torture in the proximate past of the incident 5) At the trial the learned Additional Sessions Judge concerned framed charges against the accused persons under Sections 304B and 498A of the Code which were denied by the accused persons. Subsequent thereto Rakesh committed suicide on 09.06.1998 by consuming poison and therefore he was deleted from the array of the The prosecution at the trial examined 12 witnesses including the Investigating Officer and the Doctor who had performed the postmortem examination. The defence after the recording of the statements of the appellants under Section 313 Cr.P.C. examined 4 witnesses The Trial Court on an exhaustive assessment of the evidence adduced acquitted the accused persons of the charges against which the respondent State preferred Page 3 appeal before the High Court. The impugned decision has been rendered thereby upturning the acquittal The learned Trial Court while recording the admitted fact of marriage between the deceased and Rakesh and also that the incident had occurred in the matrimonial home of the wife within 7 years of the alliance dismissed the evidence with regard to demand of motorcycle in dowry and the imputation of torture cruelty and harassment as projected by the prosecution and thus exonerated the accused persons of the charges levelled holding that in the attendant materials on record the statutory presumption as envisaged in Section 113B of the Evidence Act 1892 hereinafter referred to as the “Act 1892”) was not available for invocation The High Court however being of the opinion that the deceased had died an unnatural death in suspicious circumstances in her matrimonial home within 7 years of marriage and that the same was preceded by persistent demands for a motorcycle as dowry in marriage Page 4 accompanied by cruelty returned the finding of guilt against the appellants but exonerated Prem Bai the wife of appellant No.1 i.e. Baijnath. It accepted the evidence adduced by the prosecution qua the charge of dowry demand harassment and cruelty in connection therewith and applied the deeming prescription statutory presumption contained in Section 304B of the Code and Section 113B of Act 1892 10) The learned counsel for the appellants has in this backdrop insistently urged that the evidence in support of the charge of demand for a motorcycle as dowry in marriage by the husband and his family members being patently inadequate and unconvincing to furnish the ingredient relating thereto qua the charges levelled against the appellants their conviction is utterly unsustainable and if allowed to stand would amount to travesty of justice According to Mr. Dave the imperative essentials of Sections 498A and 304B of the Code not having been proved the High Court had fallen in error in applying the Page 5 deeming edict statutory presumption mandated by Section 304B of the Code and Section 113B of Act 1892 in converting their acquittal to conviction. The learned counsel contended that as the medical evidence as well did not disclose with certainty the cause of deathhomicidal or suicidal there was as such no incriminating evidence on record to prove the culpability of the appellants. As not only the testimony of the prosecution witnesses with regard to demand for a motorcycle as dowry in marriage is visibly inconsistent mutilating each other the defence evidence to the contrary formidably establish the falsity of this charge he urged. According to Mr. Dave the analysis of the evidence on record by the High Court has been erroneous leading to findings not borne out by the materials on record and thus are indefensible in any view of the matter warranting the acquittal of the appellants 11) In emphatic refutation the learned counsel for the respondent has argued that as admittedly the unfortunate incident had occurred within seven years of marriage in the Page 6 matrimonial home and that too in suspicious circumstances all the prerequisites of the offences under Sections 498A and 304B were proved beyond reasonable doubt and thus the impugned decision does not merit interference. The learned Trial Court did err in evaluating the evidence in the correct perspectives and the High Court having undertaken a painstaking review thereof the findings arrived at by it following a proper appreciation of the materials on record are not only valid in law but also in the exigent espousal of the cause of justice 12) After outlining the rival submissions as above it is considered expedient next to take a synopsised stock of the evidence adduced by the parties so as to facilitate a better comprehension of the facets of the lis and the desired 13) PW 1 Kundan Singh the uncle of the deceased deposed that the families of the accused persons were joint and that at the marriage cash and other valuables were gifted to the in laws of the deceased and that the ceremony Page 7 was solemnized without any hassle. The witness however referred to a grievance being expressed later on by the deceased alleging that she was being harassed by her husband Rakesh and the appellants as well as Prem Bai the wife of appellant No.1 relating to the demand of motorcycle in dowry. The witness also referred to another occasion where a similar complaint had been made by the deceased to him. He claimed to have seen the dead body of the deceased hanging from the fan 14) In cross examination this witness deposed about a demand for motorcycle at the time of marriage but however conceded that no complaint was made to the police for such demand at any point of time. He denied the suggestion that the deceased had committed suicide as because her fidelity to her husband was being questioned in the face of her love affairs with the son of one Thoran Singh the Sarpanch of the village 15) PW 2 Jahar Singh the father of the deceased mentioned about the demand for a motorcycle by the Page 8 husband and the in laws of the deceased at the time of the marriage and also the harassment in connection therewith suffered by the deceased as reported by her to him. The witness also referred to the same demand by the husband in the year 1996 on the occasion of Chowk Vidai a ritual whereupon he was assured that as and when it would be financially feasible the same would be arranged. This witness as well stated that though the demand for the motorcycle was being made since the time of marriage in the year 1994 no complaint was made by him with regard thereto to anybody. When confronted with his statement in course of the investigation he admitted of the omission in the disclosure that the deceased had confided in him about such demand during her limited stay at the matrimonial home and the harassment and mal treatment in connection therewith. He denied the suggestion that the deceased had eloped with the son of Thoran Singh and that as a result there was a confrontation between him with the family of Thoran Singh. He also denied the suggestion that Page 9 in view of this episode there was unpleasantness in the family of the in laws of the deceased for which they had some reservation in accommodating her in the nuptial 16) PW 3 Jhulla who at the relevant time was the Sarpanch of the village deposed that the deceased had committed suicide and that when he visited the spot he did not see any injury on her body 17) In cross examination he clarified that the appellant No.1 was living separately from the in laws of the deceased from before the marriage. He also mentioned that the accused persons were held in high esteem in the village and used to behave decently with their daughter in law. He also stated that he had not heard about any demand of dowry made by the accused persons 18) PW 4 Narayan Singh a neighbour did mention about the demand of a motorcycle in dowry at the time of marriage and that the deceased had disclosed to her father Page 10 about harassment meted out to her by the appellants and Prem Bai in connection therewith. In cross examination the witness testified that there was no demand for dowry before the marriage and that there was no report with regard thereto to the police 19) PW 5 Prembai the mother of the deceased testified that no dowry was fixed before the marriage and no demand was made by the accused persons but they still offered Rs.1 lac to them. She stated that her son in law while dining made a demand for motorcycle which according to the witness was assured as and when the finances would be available. This witness deposed that even after two years of marriage the appellants repeated the said demand to which a similar assurance was again 20) In cross examination this witness admitted that before the marriage no demand for motorcycle had been made as dowry though she mentioned about the complaints made by the deceased to her about harassment Page 11 by the accused persons for not providing the bike. She admitted that no complaint in this regard was ever made and the relations as well were not informed about the treatment suffered by the deceased 21) PW 7 Jahar Singh did state about a demand of motorcycle made by Rakesh the husband of the deceased 22) PW 8 Gyasibai a neighbour deposed that the deceased had committed suicide and that when she visited the place of occurrence she did not notice any injury mark on her body. In cross examination the witness stated that the deceased did never speak to her about the demand and testified that the in laws did treat her properly and that there was no confrontation at any point of time 23) PW 11 Manish Kapuria the Investigating Officer narrated the steps taken by him in course of the inquisition and mentioned amongst others about the preparation of the panchnama of the dead body. Though this witness stated that the whole exercise was Page 12 videographed he admitted that the same had not been produced as evidence. He claimed to have seen two ligature marks on the neck of the deceased 24) PW 12 Dr. R.P. Sharma who had performed the postmortem examination stated to have identified contusion on the right cheek middle of left side of neck and middle of left parietal region in the dead body According to him the ligature mark was found to be ante mortem in nature. He also mentioned that the 3 contusions were ante mortem but opined that the ligature mark was postmortem in occurrence. On an overall assessment however the witness stated that as at the time of autopsy the body had started putrefying no opinion as to the cause of death could be given. In cross examination the witness admitted that the dead body did not wear any other injury other than those mentioned 25) The witnesses of the defence namely DW 1 Gaya Prasad DW 2 Munna DW 3 Har Kunwar Bai and DW 4 Sirnam Singh in unison testified that there was no demand Page 13 for dowry or motorcycle ever made by the husband of the deceased or her in laws. They further stated that the appellant No.1 Baijnath had been residing separately from the in laws of the deceased from before the marriage According to them the family of the in laws of the deceased was sufficiently well off and did enjoy appreciable reputation in the society. These witnesses were all neighbours of the appellants 26) DW 3 Har Kunwar Bai in addition stated that the deceased had during her marriage eloped with the son of Pradhan of the Village Chitara and that in the night of the incident she was with her watching television before they parted for their respective rooms to sleep. This witness is the daughter in law of appellant No.2 and asserted that neither she nor the deceased had ever been harassed in the 27) The evidence on record and the competing arguments have received our required attention. As the prosecution is on the charge of the offences envisaged in Sections 304B Page 14 and 498A of the Code the provisions for reference are “304B. Dowry death.Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death Explanation. For the purpose of this sub section “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act 1961Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine Explanation.—For the purpose of this section “cruelty” means— Page 15any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health of the woman or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such 28) Whereas in the offence of dowry death defined by Section 304B of the Code the ingredients thereof are death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances and is within seven years of her marriage and that soon before her death she was subjected to cruelty or harassment by her husband or any relative of the husband for or in connection with any demand for dowry the offence under Section 498A of the Code is attracted qua the husband or his relative if she is Page 16 subjected to cruelty. The explanation to this Section exposits “cruelty” as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or healthor harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand 29) Patently thus cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences 30) The expression “dowry” is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act 1961. The expression “cruelty” as explained contains in its expanse apart from the conduct of the tormentor the consequences precipitated thereby qua the lady subjected Page 17 thereto. Be that as it may cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two 31) Section 113B of the Act enjoins a statutory presumption as to dowry death in the following terms “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 Explanation. For the purpose of this section “dowry death” shall have the same meaning as in section 304B of the Indian Penal CodeNoticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry Page 18 death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith 33) A conjoint reading of these three provisions thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to Page 19 prove such fact the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof 34) The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void by according a presumption against the person charged cannot be overeased to gloss over and condone its failure to prove credibly the basic facts enumerated in the Sections involved lest justice is the casualty. 35) This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab 2011) 11 SCC 517 and echoed in Rajeev Kumar Vs State of Haryana 16 SCC 640. In the latter Page 20 pronouncement this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval the earlier decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry” 36) Tested on the judicially adumbrated parameters as above we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt Page 21 cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably the alleged demand centers around a motorcycle which as the evidence of the prosecution witnesses would evince admittedly did not surface at the time of finalization of the marriage. PW 5 the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her when the husband had insisted for a motorcycle thereafter he was assured that he would be provided with the same finances permitting. Noticeably again the demand as sought to be projected by the prosecution if accepted to be true had lingered for almost two years. Yet admittedly no complaint was made thereof to anyone far less the police. Apart from the general allegations in the same tone ingeminated with parrot like similarity by the prosecution witnesses the allegation of cruelty and harassment to the deceased is founded on the Page 22 confidential communications by her to her parents in particular and is not supported by any other quarter 37) To the contrary the evidence of the defence witnesses is consistent to the effect that no demand as imputed had ever been made as the family of the husband was adequately well off and further the appellant No.1 Baijnath had been living separately from before the marriage According to them there was no occasion for any quarrel confrontation or unpleasantness in the family qua this issue. Significant is also the testimony of DW 3 the sister in law of the deceased who indicated abandonment of the matrimonial home by her with the son of Thoran Singh the Sarpanch of the village for which she understandably had incurred the displeasure of the in laws. DW 4 the father of DW 3 who had given his daughter in marriage in the same family had deposed that he did not ever encounter any demand for dowry. The testimony of the prosecution witnesses PW 3 and PW 7 fully consolidate the defence version Page 23A cumulative consideration of the overall evidence on the facet of dowry leaves us unconvinced about the truthfulness of the charge qua the accused persons. The prosecution in our estimate has failed to prove this indispensable component of the two offences beyond reasonable doubt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under Sections 304B and 498A of the Code against them 39) The predicament of the prosecution is compounded further by the by its failure to prove the precise cause of the death of the deceased. It is not clear as to whether the death has been suicidal or homicidal. It is also not proved beyond doubt the origin and cause of the external injuries Though the obscurity of the causative factors is due to the putrefaction of the body the benefit of the deficiency in proof logically would be available to the persons charged Page 24In all tested on the overall scrutiny of the evidence as a whole in our comprehension the conviction of the accused persons including the appellants herein on the basis of the materials on record would not be out of risk To reiterate the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available under Section 113B of the 41) Whereas the analysis of the evidence by the Trial Court in our view has been in the proper perspectives factual and legal and thus the findings recorded by it are valid the High Court based its determination substantially on presumptive inferences taking the aid of Section 113B of the Act divorced from the attendant facts and the evidence with regard thereto. We are thus of the opinion that the conclusions of the High Court do not constitute a plausible view on the materials on record and cannot be Page 25The appellants thus in view of the evaluation made hereinabove are entitled to the benefit of doubt. The appeal is allowed. The impugned judgment and order is set aside The appellants are hereby ordered to be set at liberty forthwith if not wanted in connection with any other case Let the records of the Trial Court be remitted immediately for the needful NEW DELHI NOVEMBER 18 2016

“Commercial speech” is a part of the freedom of speech and expression but malicious falsehood cannot become freedom of speech: High Court of Delhi

Court will not restrain the publication of an article even though it is defamatory when the defendant says he intends to justify it or to make fair comment on a matter of public interest. The public at large has a right to receive the “Commercial speech”. “Commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution. While engaging in advertising one’s own products, care is to be exercised to avoid disparagement of another’s products of the goodwill and reputation built by a competitor. Malicious falsehood cannot become freedom of speech and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of FIITJEE LIMITED vs. VIDYA MANDIR CLASSES LTD. & ORS. [CS(OS) 656/2021] on 16.02.2022. The facts of the case are that the plaintiff is a company registered under the Companies Act, 2013, constituted in the year 1992 for the purpose of imparting quality education to students. Over a period of time, on account of hard work put in it has been declared to be India’s number one coaching institute for Engineering Entrance Examinations in 2019. The grievance that has led to the filing of the present suit is a video that has been uploaded on YouTube by the defendant which contained falsities. The defendant is seen in the video suggesting that the plaintiff misled the parents as it was focused only on making money, while at the same time ill-treated its teachers by not paying salaries and so on. It was also claimed that there is a Central Bureau of Investigation case against the plaintiff. The plaintiff, therefore, seeks remedy against the defendant for defamation and abuse. The plaintiff’s counsel submitted that the intent of the video was retribution borne out of malice. It was further submitted that no CBI case was pending against plaintiff. The use of contemptuous words in the video was highly offensive, particularly when the plaintiff and defendants were in the same field of business and were competitors. The counsel submitted that the offending video had to be taken down as its continued circulation would cause much loss of reputation to the plaintiff. The defendant’s counsel submitted that apart from the interim reliefs sought are materially the same as the final reliefs sought in the plaint, except for damages, and therefore, cannot be granted. It was further submitted that every word in the video cannot be looked into at this interim stage to determine whether they constituted defamation or not. While the defendants established no harm would be caused to the plaintiff if the video remained, the Court held that it cannot be compensated through award of damages and the Court was of the view that the defendants will have to take down the aforementioned sentences in the video, depicting the plaintiff as a set of criminals. The Court observed, “Court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. The public at large has a right to receive the “Commercial speech”. “Commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the constitution.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 16th February 2022. CS(OS) 656 2021 FIITJEE LIMITED VIDYA MANDIR CLASSES LTD. & ORS. Through: Mr. Sudhir Nandrajog Sr. Adv. with Mr. Ankit Jain Mr. Mohit Gupta Mr. Vishal Saxena Mr. Abhay P. Singh Ms. Meenakshi Garg Mukesh Goyal Mr. Dilip Arya and Mr. Aayush Kumar Advs. …..Defendants Through: Mr. Jayant K. Mehta Sr. Adv. with Mr. Kartik Yadav Mr. Parinay T. Vasandani Mr. Karanvir Singh Goraya Ms. Sumedha and Mr. Amrit Singh Advs. for D l. Mr. Rajiv Nayar Sr. Adv. with Mr. Harish Pandey Adv. for D 2. Mr. Aditya Gupta Ms. Aishwarya Kane and Mr. Pratik Dixit Advs. for D 9. HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] O R D E R 16.02.2022 LA. 16137 2021This order will dispose of I.A No.16173 2021 under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure 1908filed by the plaintiff for interim relief. CS(OS) 656 2021 2. I have heard the submissions of Mr. Sudhir Nandrajog learned senior counsel for the plaintiff Mr. Jayant K. Mehta learned senior counsel for the defendant No.1 Mr. Rajiv Nayar learned senior counsel for the defendant No.2 and Mr. Aditya Gupta learned counsel for the defendant No.9 and considered the material on record and the cited case laws. The plaintiff describes itself as a company registered under the Companies Act 2013 constituted in the year 1992 for the purpose of imparting quality education to students so that they gain adequate skills to secure admission to various premier educational institutions in the country such as the Indian Institute of Technology. It claims to have developed a unique method of teaching and formulating various programs which ensures a high rate of success amongst its pupils in gaining admission to these premier institutions of higher education. Over a period of time on account of hard work put in by the teachers at its 80 centers spread across the country it has been declared to be India‟s number one coaching institute for Engineering Entrance Examinations in 2019. The grievance that has led to the filing of the present suit is a video that has been uploaded on YouTube by the defendant No.2 which according to the plaintiff contained falsities. The defendant no.2 is seen in the video the transcripts have been placed at pages 26 64 of the plaintiff‟s documents) introducing the topic as akin to the battle between „Sri Ram‟ and „Ravan‟ certainly suggesting that the plaintiff was in the position of „Ravan‟ by not heeding to the warnings of defendant No.1 on previous occasions to refrain from disparaging it and thus inviting upon itself the strong rebuttal by defendant No.2. The plaintiff has been painted in a completely negative light by the use of such metaphors. Words such as „gumrah‟ have been used CS(OS) 656 2021 against the plaintiff the public is told that the plaintiff misled the parents held the parents and children hostages was focused only on making money indulged in kidnapping and extortion while at the same time ill treating its teachers by not paying salaries and so on. There is also a comment on the refund policy of the plaintiff and other malpractices have been alleged. It is also claimed that there is a Central Bureau of Investigationcase against the plaintiff. 5. Mr. Sudhir Nandrajog learned senior counsel for the plaintiff submitted that the intent of the video was retribution borne out of malice. It was explained that it was fair practice in the industry for institutions to issue advertisements where a comparative performance is published. Since the comparison in the advertisement issued by the plaintiff was not complimentary to the defendants therefore the offending video was uploaded by the defendant no.2. Assuming that the plaintiff‟s advertisement had caused discomfort to the defendants they could have sought remedy against the plaintiff but it did not give them license to defame and abuse the plaintiff. It was submitted that no CBI case was pending nor has the plaintiff been summoned by the CBI for investigation ever. Even as per the documents filed by the defendantsa complaint seems to have been filed and the Human Resource Development Minister had only assured that the matter would follow its own course. That would not mean that a CBI case has been registered or investigation was going on. Further by relying on videos that showed a disgruntled teacher whose services stood terminated and against whom the High Court had issued an injunction and in respect of which the teacher was in contempt the claim has been made that CS(OS) 656 2021 the plaintiff did not pay the teachers. Similarly the National Consumer Disputes Redressal Forum has repeatedly upheld the refund policy of the plaintiff. The use of contemptuous words in the video such as “kidnapping” was highly offensive particularly when the plaintiff and defendants were in the same field of business and were competitors. It was further submitted that the mala fide action of the defendants was also writ large in their manipulation of service in a civil suit filed by them pending before the District Court Gautam Budh Nagar. The defendant no.1 had filed a suit on 29th November 2021 after a legal notice had been issued by the plaintiff to the defendants on 17th November 2021 and advance copy of this suit filed on 23rd November 2021 had also been served on them. Thereafter the summons in that suit were issued at the wrong address of the plaintiff i.e. it was sent to a study center and not to the registered or Corporate Office of the plaintiff at a time when the study center was closed due to Covid 19 restrictions and which fact was known to all. Learned senior counsel submitted that the offending video had to be taken down even at the interim stage as its continued circulation would cause much loss of reputation to the plaintiff. 8. Mr. Jayant K. Mehta learned senior counsel appearing on behalf of the defendant no.1 submitted that it was raising a defence of justification. It was submitted that the video relied upon material which was disclosed in the description box and therefore the statements made in the video were not baseless. It was further submitted that the defendant no.1 having relied on material would require to be given an opportunity to substantiate the statements made in the video. Opinions could differ and what inference is to be drawn may be looked into at a later stage. Finally it was also submitted CS(OS) 656 2021 that no final relief can be granted at an interim stage. The learned senior counsel submitted that the plaintiff could be compensated with award of damages if the comments in the video were found to be unjustified but if the video was taken down the defendant would get no opportunity to prove justification. It was also submitted that the video transcripts filed by the plaintiff were not reflecting the complete video. In these circumstances when hyperlinks revealed the source of information and justification has been pleaded and further the plaintiff has sought damages there was no occasion for grant of any interim relief. Reliance has been placed on the judgments in Khushwant Singh and Anr. Vs. Maneka Gandhi 2001 SCC OnLine Del 1030 and Dr. Shashi Tharoor Vs. Arnab Goswami and Anr. 2017 SCC OnLine Del 12049. 9. Mr. Rajiv Nayar learned senior counsel appearing on behalf of the defendant no.2 submitted that apart from the fact that the interim reliefs sought are materially the same as the final reliefs sought in the plaint except for damages and which cannot be granted the fact remains that in respect of prayerno injunction in anticipation can be granted. Existence of malice is also to be examined on evidence. Similarly the defendant no.2 who also claims justification in making the statements recorded in the video has to be granted an opportunity as well to prove justification during trial. When such a plea of justification has been raised there can be no interim injunction granted. Moreover it was submitted that since the plaintiff had claimed damages it was disentitled for interim injunction. It was further submitted that every word in the video cannot be looked into at this interim stage to determine whether they constituted defamation or not. Reliance has been placed on the judgements in State of U.P. Vs. Ram Sukhi Devi 9 CS(OS) 656 2021 SCC 733 Sardar Charanjit Singh Vs. Arun Purie & Ors. 1982 SCC OnLine Del 301 Indian Express Newspapers Vs. Dr. Jagmohan Mundhara & Anr. 1984 SCC OnLine Bom 256 Abdul Wahab Galadari Vs. Indian Express Newspapers Ltd. 1993 SCC OnLine Bom 180 Khushwant SinghP. Subba Rao v. Andhra Association Delhi Regd.) 2008 SCC OnLine Del 417 Tata Sons Limited Vs. Greenpeace International & Anr. 2011 SCC OnLine Del 466 Sellers Retail(P) Ltd. Vs. Aditya Birla Nuvo Ltd.6 SCC 792 Naveen Jindal Vs. Zee Media Corporation Ltd. 5 HCC 172 Dr. Shashi Tharoor supra) and Kailash Gahlot Vs. Vijender Gupta & Ors. No.403 2021]. In rejoinder the learned senior counsel for the plaintiff submitted that the entire tone and tenor of the video has to be considered and the plaintiff has not come to the court against one or two words. By removal of one or two words the malice in the video will not get removed. It was submitted that videos are different from newspaper publications inasmuch as the videos are available for viewership on a continuous basis and their removal was in the present time and not in the future. It was also submitted that justification is not the same as „truth‟ and while truth can be an absolute defence justification is not of that quality. Justification had to be founded on verifiable data but it was clear that the defendants have not verified the truth. Moreover the malafide intent of the defendants was clear from the fact that the defendant no.2 admittedly had been in the employment of the plaintiff till 2011 and therefore was fully aware of the hard work of the plaintiff and its programs and the efforts put in by the teachers and yet he chose to make the wild allegations. This was not a case of pre publication as in the cases CS(OS) 656 2021 relied by the defendants where the Court did not have the proposed matter sought to be published and look into its impact. Here the publication has already been effected and it contained highly defamatory material and which was clearly not in public interest. Reliance has been placed on Bata India Ltd. v. A.M. Turaz 2012 SCC OnLine Del 5387 to submit that no one has a right to disparage the reputation of another. It was submitted that in appropriate cases considering the impact on the plaintiff as well as public interest relief of a final nature can be granted and the present case was one such case. In these circumstances it was prayed that interim injunction be granted. 11. The plaintiff and the defendants are in the field of education. They both have developed programs tutor students for competitive examinations such as „JEE‟. They claim to be well known having built their reputation over decades. As traditionally transfer of knowledge has been considered as the highest of all human action and does not involve accumulation of wealth one is hesitant to use the word “business” rivals to describe the plaintiff and the defendants but since both are incorporated entities there appears to be no other apt word to describe them. Considering that the pool for both of them is the same i.e. the young students in the Higher Secondary Schools who are desirous of joining premier engineering colleges and institutions they seek to exert themselves to attract more and more from the common pool. In normal course such competition would work for the improvement in the quality of the services and must be welcomed. CS(OS) 656 2021 12. However there are occasions when competition takes an ugly turn. To take a cue from the preamble to the Competition Act 2002 practices having adverse effect on competition need to be prevented but at the same time competition must be promoted and sustained to protect the interest of consumers and to ensure freedom of trade carried by all participants in the markets here the field of education. 13. While competing with one another it is but natural that each player would portray themselves to be the best in the field. It is equally possible that while doing so they may adversely comment on their competitors. Allegations and counter allegations of disparagement defamation injury to reputation and similar issues then crop up. This is one such case. 14. The plaintiff in the instant application has made the following prayers: “(a) an ex parte injunction against all the defendants its members agents assigns etc. requiring immediately take down the false frivolous defamatory and scandalous youtube videos as detailed in para 20 of the Plaint and be injuncted from posting publishing creating uploading or circulating any defamatory or scandalous videos articles posts against the plaintiff and issue a written public apology apologizing for creating defamatory videos against the plaintiff and or b) Pass any other further orders as this Hon’ble court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff.” 15. The contentions against the grant of these prayers may be summarized under three heads:that the mandatory injunction sought of taking down the video cannot be granted at the interim stage when the defendants have CS(OS) 656 2021 pleaded justification that the final relief cannot be granted at the interim stage and that the plaintiff cannot seek injunction for future posting or publishing of articles and posts by the defendants. These will be discussed It is true as submitted by the learned senior counsel for the plaintiff that the defence of justification is not of the same caliber as the defence of truth. Truth is an absolute defence and no injunction can follow when truth is pleaded. But it is undeniable that justification can be established only at trial and a defendant ought to have an opportunity to establish it through evidence. When the plea of justification is taken the courts are slow in issuing injunctions against publication. The general view taken is that if the defendants fail to substantiate their defence of justification then the plaintiff would become entitled to damages. In Fraser v. Evans 1 QB 349 Lord Denning MR stated the law as follows: “The court will not restrain the publication of an article even though it is defamatory when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since Bonnard v. Perryman. The reason sometimes given is that the defences of justification and fair comment are for the jury which is the constitutional tribunal and not for a judge. But a better reason is the importance in the public interest that the truth should out. … There is no wrong done if it is true or if the alleged libel] is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication…” 17. There is no thumb rule that lays down that the court is completely powerless to grant mandatory injunction or a final relief at the interim stage. CS(OS) 656 2021 In Deoraj Vs. State of Maharashtra & Ors.4 SCC 697 the Supreme Court has held: “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself for by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case___of a standard much higher than just prima facie case the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice resulting in injustice being perpetuated throughout the hearing and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.” 18. The facts in the present case would have to be considered to determine whether the plaintiff has made out a very strong prima facie case entitling it to an injunction that would tantamount to the grant of the final relief itself. 19. There is no gainsaying that in general the Bonnard Rule has been followed by the courts in determining whether interlocutory injunctions CS(OS) 656 2021 should be granted against publication in cases of defamation including in the case cited on behalf of the defendants viz. Tata Sons Limited Vs. Greenpeace InternationalQB 726 the rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and cross examination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true. With respect to the argument that the plaintiff cannot seek injunction for future posting or publishing of articles this court has held itself bound by the view of the Division Bench in Khushwant Singh’s case succinctly restated in His Holiness Shamar Rimpoche Vs. Lea Terhune and Others AIR 2005 Del 167 as follows : This court is fully bound by the judgment of the Division Bench in Khushwant Singh s case656 2021 urged on behalf of the defendants it is necessary to turn to the facts and circumstances at hand. In the present case the defendants have submitted that they were justified in making the statements in the video as these were based on materials in respect of which links had been provided in the description of the video. The defendants have also filed newspaper and other reports and a judgment of the Consumer Disputes Redressal Forum II U.T. Chandigarh in respect of the refund policy of the plaintiff. It is submitted that once the defendants have disclosed not only their defence to justify their remarks but also the documents and materials on which they were seeking to rely then automatically the case must go for trial and no interim injunction can be granted. The judgments relied upon by the defendants do set out this principle. 22. At the same time the question to be answered is whether the plaintiff has made out a prima facie case for a direction requiring the defendants to take down the YouTube video as detailed in the para No.20 of the plaint. As noticed above the plaintiff and the defendants are business rivals. They compete for good students coming to their institutions so that their effort in establishing a reputation of being a good coaching institute would be fortified. Both sides would naturally seek to place in the public domain such aspects of their activities which would encourage students to come to their coaching institutes. The video that has been filed opens up with the defendant No.2 referring to an advertisement published in the “Hindustan Times” by the plaintiff. This advertisement has been filed by the plaintiff at page 25 of its documents in the E file and is reproduced below for convenience: CS(OS) 656 2021 23. If a competitive performance has been listed by the plaintiff to show their better performance then a response to the advertisement by way of the CS(OS) 656 2021 video is to be seen as a counter advertisement. Thus what is good for the goose should be equally good for the gander. Though neither side has argued on freedom of commercial speech and stressed on freedom of speech under Article 19(1)(a) of the Constitution this Court has considered the issue from that angle as here the issue relates to claims made publicly by the parties in respect of their services and both are competitors in the same field of business. Hence the issue is not merely of freedom of speech but of freedom of commercial speech. 24. Competitive advertisements are permissible as held in Tata Press Limited Vs. Mahanagar Telephone Nigam Limited and Others 5 SCC 139 as advertising is essential for economic activity. It informs the consumers of the existence of various goods and services the quality of these products and services the product origin etc. It also builds up reputation. It is in this context that the Supreme Court held as below: Examined from another angle the public at large has a right to receive the "Commercial speech". Article(1)not only guarantees freedom of speech and expression it also protects the rights of an individual to listen read and receive the said speech. So far as the economic needs of a citizen are concerned their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement than the businessman who the publication. An advertisement giving information regarding a lifesaving drug may be of much more importance to general public than to the advertiser who may be having purely a trade is behind CS(OS) 656 2021 25. We therefore hold that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)of the constitution.” 25. Having said that there is however a limitation to the exercise of this commercial free speech (supra). While engaging in advertising once own products care is to be exercised to avoid disparagement of another‟s products or denigration of the goodwill and reputation built by a competitor. Malicious falsehood cannot become freedom of speech. The learned senior counsel for the plaintiff urged that because the video was in response to a comparative advertisement issued by the plaintiff the content of the video was malicious. However no such inference can be drawn as there are portions in the video which relies on some material on the basis of which the defendants plead justification. 26. Since it is the case of the plaintiff that the video is in response to the advertisement of the plaintiff the video though of some length can also be considered as an audio visual advertisement of the defendants to assure their students and their parents of the quality of education imparted in their institutions. The content of the video would then have to be assessed on the three Tests that have been laid down by the Division Bench of this court in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. 2003 SCC OnLine Del 802 to decide the question of disparagement namelyintent of the commercial ii) manner of the commercial storyline of the commercial and the message sought to be conveyed by the commercial. A fourth factor has been included by the Co ordinate Bench of this court in Reckitt Benckiser India CS(OS) 656 2021 Private Limited Vs. Hindustan Unilever Limited 2021 SCC OnLine Del 4896 viz. while glorifying its product an advertiser may not denigrate or disparage a rival product. 27. While some latitude is to be given for hyperbole and commendatory expression for oneself with an attempt to show down the competitor there can be no license to anyone to denigrate the competitor. The courts have protected parties who have been at the receiving end of such negative 28. There can be no doubt that justification would require to be established by evidence. What would be the impact of a video being shown on social media and shared and viewed by people several times over on a common and ordinary person who is an anxious parent wanting to send his her child to enter the portals of reputed engineering colleges and looking for a coaching institute may have to be considered. But the view taken by this court in Tata Sons Limited Vs. Greenpeace Internationalis that wider viewership or a degree of permanence characteristic of publication on the internet would not change the essential fact that it too is but a medium of expression and calls for no different standards for grant of interlocutory injunction. There is no reason for this Court to take a different view. 29. So the only question to be seen is whether the video in question contains any disparagement or defamatory matter. It is then apparent in the video that the defendant No.2 has used very offensive words alleging that the plaintiff would „kidnap” and take the students “hostage” and put them under such pressure and indulge in “extortion”—allegations that are serious as indicating that the plaintiff has no qualms in indulging in crime for CS(OS) 656 2021 30. Whether there is one disgruntled teacher or several as are the varying stances of the plaintiff and the defendants there may be some material for the defendants to have claimed that the teachers were dissatisfied. It would be an inquiry during trial whether on whatever material the defendants had relied on such an inference can be drawn and statements made. Similarly criticizing the refund policy on the basis of the decisions of the Consumer Disputes Redressal Forum prima facie does not appear to be defamatory and that too of a scale which would require immediate directions to pull down the video. Criticism of the various programs of the plaintiff in this video and the elaboration of how the defendant No.1 conducts its programs would also be only in the nature of competitive advertisement. The comparison would naturally be tested during the trial to determine whether the inferences drawn were justified. 31. But to accuse someone of kidnapping extortion etc. is different. Use of such strong words is inappropriate to say the least. It directly impacts the parent who would be discouraged with such negative description of the plaintiff. These words ex facie are untrue. These words cannot be allowed to remain. This Court however does not agree with the submission of the learned senior counsel for the plaintiff that removal of the offensive words will not be sufficient to meet the ends of justice at this interim stage. In conclusion while the defendants have established that the balance of convenience is in their favour as no harm would be caused to the plaintiff if the video remained that cannot be compensated through award of damages this Court is of the considered view that the defendants will have to take down the aforementioned sentences in the video and ensure that no CS(OS) 656 2021 version with such content is in circulation depicting the plaintiff as a set of criminals. 33. Accordingly an affidavit shall be filed by the defendants to this effect that they have edited out the aforementioned offending words and sentences that have been used in the video. The same be filed within four weeks. 34. For the present therefore there are no directions to the defendant 35. The application is disposed of in these terms. CS(OS) 656 2021 36. The defendants may file written statement(s) to the suit within thirty days with an advance copy to the opposite side. The defendants shall also file the affidavit of admission denial of the documents filed by the plaintiff failing which the written statements shall not be taken on record. 37. The plaintiff is at liberty to file replication(s) to the written statement(s) filed by the defendants within thirty days of the filing of the written statement(s). The replication(s) shall be accompanied by the affidavit of admission denial in respect of the documents filed by the defendants failing which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents the same shall be sought and given within the time lines. 39. List before the court for framing of issues on 10th May 2022. 40. The order be uploaded on the website forthwith. FEBRUARY 16 2022 „bs‟ JUDGE CS(OS) 656 2021

No investigation is permitted by police officer unless a Magistrate orders in case of non-cognizable offence – Calcutta High Court

In the case of Babul Supriyo Vs State of West Bengal & Anr. [CRR 903 of 2017 with I.A No: CRAN 2 of 2017] Calcutta High Court held that it is expected from a representative of the people that he must be courteous in his behaviour, dignified in his manners and cautious on his words spoken by him. In the wake of a political turmoil after arrest of a leader of opposition party in Lok Sabha, a national debate was held and telecast by a national channel, NDTV 24 X 7. In the said national debate the petitioner, an elected MP in course of such debate, when the opposite party was opposing the petitioner’s contention, he made a comment, “Mohua, are you on Mohua?” According to the opposite party the said comment was derogatory alluding of the intoxicating liquor called Mohua which is drunk in many tribal areas in India. She also alleged that the petitioner made such comment at the fag-end of the programme. The opposite party could not raise any protest against the said remark. However, the anchor of the programme immediately reprimanded the petitioner and asked him not to make any personal remark in course of debate. According to the opposite party such remark made by the petitioner against her caused great offence and distress and was clearly a violation of Section 509 of the Indian Penal Code. The said comment was patently untrue, false and made to maliciously defame her. The opposite party accordingly lodged an FIR against the petitioner and petitioner was arrested. The petitioner had filed an application under Section 482 of the Code of Criminal Procedure praying for quashing of the charge-sheet. The petitioner made his submission in support of quashing of the charge-sheet on the following grounds- The opposite party-respondent submitted that- The Hon’ble Supreme Court observed that, “On careful reading of the judicial pronouncement by the Hon’ble Supreme Court in various cases, it is found that the test for ascertaining if modesty has been outraging or not lies on determination of the question as to whether the act by the accused is capable of shocking the sense of decency of the woman. The sense of decency of the woman, if considered to explain the term ‘modesty’ within the meaning of Section 354 is her sex. Similarly, where a woman is made to feel ashamed of her sexual dignity, i.e, lowering the sexual honour of a woman in her own eyes, she feels insulted within the meaning of Section 509 of the Indian Penal Code.” Court held that, “The petitioner, it is already stated, at the relevant point of time was a Member of Parliament. He took solemn oath to bear faith and allegiance to the constitution. By making such defamatory statement to a woman, the petitioner prima facie, not only humiliated dignity and honour of a woman, but also violated his constitutional oath. If doubt is raised in the mind of people from the utterances made by the petitioner that the at the relevant point of time she was drunken and intoxicated, this would of course an act of imputation intending to harm the reputation of the opposite party and such deliberate utterance made by the petitioner was defamatory statement within the meaning of Section 499 of the Indian Penal Code.”

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI CRR 9017 With I.A No: CRAN 17 Old No:CRAN 18017) CRAN 17 Old No:CRAN 28417) CRAN 17 Old No:CRAN 47317) CRAN 18 Old No:CRAN 9818) CRAN 18 Old No:CRAN 16818) CRAN 119 Old No:CRAN 26219) BABUL SUPRIYO VS STATE OF WEST BENGAL & ANR For the Petitioner: For the State: For O.P No.2: Mr. Ayan Bhattacharjee Mr. Anand Keshari Ms. Priyanka Tibrewal Mr. Aditya Ratan Tiwary Mr. Danish Taslim. Mr. Saswata Gopal Mukherjee Ld. P.P Mr. Ranabir Roychowdhury Mr. Mainak Gupta. Mr. Sabyasachi Banerjee Ms. Minal Palana. Heard on: September 24 30 and October 5 6 2020. Judgment on: 14 October 2020. 2 BIBEK CHAUDHURI J. : Background: In the wake of a political turmoil after arrest of a leader of opposition party in Lok Sabha on 3rd January 2017 a national debate was held and telecast by a national channel named NDTV 24 X 7. The said debate was anchored by one Ms. Barkha Dutta and titled as “The Buck Stops Here”. In the said national debate the petitioner an elected MP and the then ruling party of the Central Government and the opposite party No.2 an elected member of Legislative Assembly of the State of West Bengal and National Spokesperson on behalf of her political party at the relevant point of time took part in the discussion. In course of such debate when the opposite party No.2 was opposing the petitioner’s contention he made a comment “Mohua are you on Mohua ” According to the opposite party No.2 the said comment was derogatory alluding of the intoxicating liquor called Mohua which is drunk in many tribal areas in India. She also alleged that the petitioner made such comment at the fag end of the programme. The opposite party could not raise any protest against the said remark. However the anchor of the programme immediately reprimanded the petitioner and asked him not to make any personal remark in course of debate. According to the opposite party No.2 such remark made by the petitioner against her caused great offence and distress and was clearly a violation of Section 509 of the Indian Penal Code. The said comment is patently untrue false and made to maliciously defame her in clear violation of Section 500 of the Indian Penal Code. The opposite party No.2 accordingly lodged an FIR against the petitioner before the officer in charge Alipore P.S. Police registered Alipore P.S Case No.2 dated 4th January 2017 under Section 509 of the Indian Penal Code and commenced investigation of the case. On completion of investigation the charge sheet was submitted against the petitioner under Section 509 of the Indian Penal Code. The learned Chief Judicial Magistrate took cognizance of the offence and issued warrant of arrest against the petitioner. It is at this stage the petitioner has filed an application under Section 482 of the Code of Criminal Procedure praying for quashing of the charge sheet. Vide order dated 23rd March 2017 the aforesaid application under Section 482 of the Code of Criminal Procedure which was registered as CRR 9017 was admitted for hearing and stay of further proceeding of the criminal case being CGR 62 of 2017 was granted for a limited period of time. It is further ascertained from the order dated 28th April 2017 that the opposite party No.2 made an application prying for vacating the interim order. The said application was directed to be treated as an affidavit of opposition to the revision petition and directed to be disposed of along with the instant revision. Finally the aforesaid criminal revision is heard by this Court on the basis of specific determination allotted to this India. Court by the Chief Justice of this Court in terms of the last order passed by the Hon’ble Supreme Court in Ashwini Kumar Upadhyay vs. Union of Submission made on behalf of the petitioner: 8. Mr. Ayan Bhattacharjee learned Advocate for the petitioner made his submission in support of quashing of the charge sheet against the petitioner on the following grounds: The statement made in the FIR by opposite party No.2 does not disclose an offence under Section 509 of the Indian Penal Code. The statement made by the petitioner in course of a debate in the wake of a political turmoil as a result of arrest of the leader of opposition party in Parliament was an “accidental slip” of words. The petitioner had no mens rea against opposite party No.2 causing insult to her modesty. Even assuming that the action of the petitioner was deliberate the words “Mohua are you on Mohua ” did not amount to insult modesty of a women. Inviting this Court to read out the entire transcription of the programme it is contended by Mr. Bhattacherjee that the petitioner wanted to mean if the opposite party No.2 was in her senses. He did not want to insult the modesty of the opposite party No.2 by uttering such words in course of a television programme. It is further submitted by Mr. Bhattacharya that in order to constitute an offence under this Section the accused must have an intention to insult the modesty of a woman. Second part of the section deals with the purported act by the offender in furtherance to his mens rea. The specific actions are utterance of any word making any sound or gesture or exhibiting any object intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman or intruding upon the privacy of such woman. The words “Mohua are you on Mohua ” were uttered by the petitioner in course of hot exchange of words in a debate. He had no premeditated intention to insult the modesty of the opposite party No.2. It is urged on behalf of the petitioner that in order to establish the offence it is necessary to show that the modesty of a particular woman has been insulted by a spoken word gesture or physical act. The word modesty has not been defined anywhere under the statute. In Sau. Anuradha R. Kshirsagar & Ors. vs. State of Maharashtra & Ors. reported in 1991 CRI. L.J 410 the Bombay High Court had the occasion to deal with the scope and extent of the meaning “Modesty of a woman”. Paragraph 6 of the aforesaid report is relevant and quoted below: “6...We have now to find out whether these utterances have anything to do with the modesty of the woman. The utterance are catch them by their hair kick them on the waist pull them out and I will see as to how those lady teachers who did not leave the hall stay at Akola. What Mr. Sirpurkar urged before me was that when the accused uttered the words of catching the lady teachers by their hair it is violative of modesty of a woman and therefore these utterances constitute an offence punishable under Section 509 of the Indian Penal Code. It is difficult to accept this proposition. Modesty to a woman is altogether different concept which has a very little to do with the physique of the woman. Modesty of a woman connected with the feminity including her sex. Bashfulness is another characteristic of this feminity. Any attempt of assault on this aspect may amount to insulting the modesty. Mudholkar J. in State of Punjab v. Major Singh observed in paragraph 13 : In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this Bachawat J. in paragraph 16 observed : I think that the essence of a woman s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old intelligent or imbecile awake or sleeping the woman possesses the modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under S. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant but its absence is not always decisive as for example when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot she may be under the spell of anaesthesia she may be sleeping she may be unable to appreciate the significance of the act nevertheless the offender is punishable under the section." In a subsequent decision in the case of Aman Kumar Anr. vs. State of Haryana reported in4 SCC the Hob’ble Supreme Court observed as hereunder: “13…What constitutes an outrage to female modesty is nowhere defined. The essence of a woman s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman removing her dress coupled with a request for sexual intercourse is such as would be an outrage to the modesty of a woman and knowledge that modesty is likely to be outraged is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above the word modesty is not defined in IPC. The Shorter Oxford Dictionary defines the word modesty in relation to woman as Decorous in manner and conduct not forward or lowd Shamefast Scrupulously chaste." “14…Modesty can be described as the quality of being modest and in relation to woman womanly propriety of behaviour scrupulous chastity of thought speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion impure or coarse suggestions as observed by Justice Patterson in Rex v. James Llyod7 C&P 817.” Mr. Bhattacharjee next has placed the contemplated in Section 509 of the Indian Penal Code. He refers to a copy of the Original Penal Code prepared by the Indian Law Commissioner’s and published by Command of the Governor General India in Council in 1838. Under the Original Penal Code Section 590 of the present code was under Section 486. Section 486 of the Penal Code of 1838 runs thus: “486. Whoever utters any word makes any sound makes any gesture or exhibits any object intending that such word or sound shall be heard or that such gesture or object shall be seen by any woman intending thereby to insult of modesty of that woman shall be punished with imprisonment of either description for a term which may extend the two years or fine or both. There is a illustration appended to Section 486 which goes thus: “A intending to outrage the modesty of a woman exposes his person indecently to her or uses obscene words that she should hear them or sends to her obscene drawings by post. A has committed his offence denied in this Clause. He also refers to 42 report of the Law Commission of India on Indian Penal Code published in June 1961. The following paragraph at page 264 of the said report is relevant for our purpose. “16.85.Section 354 punishes a person who assaults or uses criminal force to a woman with intent to outrage her modesty. We have earlier referred to a judgment of the Supreme Court in which it was held that even a baby of even and half months old has modesty that can be outraged by use of criminal force within the meaning of this section. In that case the accused had indecently assaulted the baby and caused injury to its genitals and the question arose whether the act amounted to an offence under section 354. The High Court of Punjab acquitted the accused holding that a girl of seven and a half months cannot have a “modesty” which can be outraged. The Supreme Court by a majority the High Court’s judgment. Bachawat J. observed: “The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old intelligent or imbecile awake or sleeping the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under section 354. The culpable intention of the accused is the crux of the matter. is very “The reaction of the woman relevant but its absence is not always decisive as for example when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot she may be under the spell of anaesthesia she may be sleeping she may be unable to appreciate the significance of the act nevertheless the offender punishable under the section.” “It speaks of outraging the modesty of a woman and at first blush seems to require that the outrage must be felt by the victim itself. But such an interpretation would leave out of the purview of the section assaults not only on girls of tender age but on even grown up woman when such a woman is sleeping and did not wake up or is under anaesthesia or stupor or is an idiot. It may also perhaps under certain And Mudholkar J. observed as follows: circumstances exclude a case where the woman is of depraved moral character. Could it be said that the Legislature intended that the doing of any act to or in the presence of any woman which the common notions of mankind is suggestive of sex would be outside this section unless the woman herself felt that it outraged her modesty Again if the sole test to be applied is the woman’s reaction to a particular act would it not be a variable test depending upon the sensitivity or the upbringing of the woman These considerations impel me reject the test of a woman’s individual reaction to the act of the accused. I must however confess that it would not be easy to lay down a comprehensive test but about this much I feel no difficulty. In my judgment when any act done to or in the presence of is clearly suggestive of sex a woman the common notions of mankind that act must fall within the mischief of this section.” is correct “To say that every female of whatever age is possessed of modesty capable of being outraged seems to me be laying down too rigid a rule which may be divorced from reality. There obviously is no universal standard of modesty. If my reading of the remains to be decided is whether a reasonable man would think that the female child on whom the offence was committed had modesty which respondent intended to outrage by his act or knew it to be the likely result of it. I do not think a reasonable man would say that a female child of seven and a half months the question Sarkar C.J. however dissented: is possessed of womanly modesty. If she had not there could be no question of the respondent having intended to outrage her modesty or having known that his act was likely to have that result. I would for this reason answer the question Referring to the Law Commission’s report and the judicial pronouncements stated above it is submitted by Mr. Bhattacharjee that the essence of a woman’s modesty is her sex. Unless any utterance gesture or act by the accused attributes to sex of a woman such act will never be an insult on the modesty of a woman or outraging her modesty. In support of his contention he also refers to a decision of the Kerala High Court in the case of Rev. Fr. Mathew Pulimoottil Episcopa vs. State of Kerala reported in 2014 CRI. L.J. 2394. viii. Referring to another decision of the Hon’ble High Court in the case of S. Khushboo vs. Kanniammal & Anr Reported in 2010 5 SCC 600 it is submitted by Mr. Bhattacherjee that obscenity has to be determined in accordance with contemporary community standards reflecting sensibilities as well as tolerance level of average reasonable person. It is not the task of Criminal Law to punish individuals for expressing unpopular views. The threshold for placing reasonable restriction on the “freedom of speech and expression” is indeed a very high one and there should be a presumption in favour of the accused in such cases. The petitioner’s remark in a live television show might provoke a controversy it might so happened that there might be objectionable remarks by the supports of the petitioner against the opposite party following such statement made by the petitioner but the statement par se is not made to insult the modesty of the opposite party No.2. In order to be an offence there must be criminality of action and secondly such action must be attributable to woman sex. Calling a lady intoxicant or under influence of liquor does not amount to insult her ix. Mr. Bhattacherjee further submits that if two possible and reasonable constructions can be put upon a penal provision the court must accept the construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. The strict theory suggests that modesty of a woman is her sex raising a question to a lady in course of her conversation as to whether she is intoxicated or not cannot be considered to be an utterance to insult her modesty. In support of his contention he refers to a decision of the Hon’ble Supreme Court in the case of Bijaya Kumar Agarwala vs. State of Orissa :5 SCC 1 and also the case of Shreya Singhal vs. Union of India reported in 2015) 5 SCC 1. Mr. Bhattacharjee also refers to Section 95 of the Indian Penal Code which says “95. Act causing slight harm nothing is an offence by reason that it causes or that it is intended to cause or that it is known to be likely to cause any harm if that harm is so slight that no person of ordinary sense and temper would complain of such harm.” According to the learned Counsel for the petitioner the particular utterance made by his client did not cause any harm or said statement was not made with the intention to cause harm to the opposite party No.2 far less an offence of insulting the modesty of the opposite party No.2. For the reasons aforesaid it is submitted by the learned Advocate for the petitioner that proceeding in CGR case No.62 of 2017 will be sheer abuse of process of law as the alleged act of the petitioner does not constitute any offence under Section 509 of the Indian Penal Code and the proceeding requires to be quashed. Submission made on behalf of O.P No.2: 9. Mr. Sabyasachi Banerjee learned Advocate for the opposite party No.2 on the other hand submits that chapter XIX of the Code of Criminal Procedure deals with trial of warrant cases by Magistrates instituted on a police report. Section 239 of the Code clearly states that if upon considering the police report and the documents under Section 173 and making such examination if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless he shall discharge the accused and record his reasons for so doing. 10. According to Mr. Banerjee the Code clearly makes detailed provision for discharging the accused by the Magistrate on consideration of police report and the documents under Section 173 of the Code by the learned Magistrate. The petitioner could have approached the learned Court below with a prayer to discharge him. He could have taken the plea of general exception under Section 95 of the Indian Penal Code before the learned Magistrate and urged that no offence under Section 509 of the Indian Penal Code was made out against him on the basis of the documents under Section 173 of the Code. When there is a clear provision in the Code the petitioner cannot take recourse of Section 482 of the Code of Criminal Procedure. Thus the instant revision according to the learned Counsel for the opposite party No.2 is misconceived and liable to be dismissed. 11. Secondly learned Advocate for the opposite party No.2 invites my attention to CRAN 18017 which has been treated as an affidavit in opposition against the instant revisional application. It is pointed out by him that after the comment made by the petitioner to the opposite party No.2 his twitter account was full of obscene sexist remark against the petitioner. It is also pointed out by Mr. Banerjee that the transcription of the programme shows the anchor moderator interrupted the petitioner asking him not to make any personal comment. If the comment made by the petitioner is viewed from the perspective of Ms. Barkha Dutta it will prima facie suggest that the petitioner made such comment only to assassinate the personal character of a lady. 12. Thirdly according to Mr. Banerjee culpable intention of the accused is the crux of the matter to consider as to whether any offence of like nature was committed by the petitioner or not. The petitioner is not only a sitting Member of Parliament but also a Minister of State. It is presumed that he understood the reparcation of his comment. The opposite party No.2 was also at the relevant point of time a member of Legislative Assembly and a National Spokesperson on behalf of her political party. When a lady of political repute who represented majority mass of people of her constituency was castigated publicly saying that she was under influence of liquor such utterance especially to a lady is according to Mr. Banerjee a sexist comment which insulted the modesty of the opposite party No.2. Coming to the question as to what constitutes “modesty of a woman” or in other words what is the definition of modesty Mr. Banerjee refers to paragraph 6A of the decision of the Bombay High Court Sau. Anuradha R. Kshirsagar & Ors.which runs thus: “6A. Sarkar J. dissented with the majority decision but the dissent was on other point with which we are not concerned in the present case. The dissent was on the point whether the woman must necessarily be conscious of the assault on her modesty. As far as the other position is concerned there is unanimity of opinion. The concept of modesty concerns with feminity including sex. Wherever there is an assault or insult to this feminity or the like qualities accompanying it the offence under Section 509 of the Indian Penal Code will be made out.” 13. Thus Mr. Banerjee has pointed out that the minority view of Major Singh’s case is that the concept of modesty concerns with the femininity including sex. The above definition means that the concept of “modesty” is not restricted to sex. Whenever there is assault on femininity or like quality accompanying it it is insult on modesty within the meaning of Section 509 or “outraging modesty” within the meaning of Section 354 of the Indian Penal Code. 14. Mr. Banerjee further relies on paragraph 14 of the decision of the Hon’ble Supreme Court in the case of Rupan Deol Bajaj& Anr. vs. Kanwar Pal Singh Gill & Anr. reported in 6 SCC 194. As the word modesty has not been defined in the Indian Penal Code. The Hon’ble Supreme Court proceeded to define modesty taking into account the dictionary meaning of the word. Paragraph 14 of the said report runs “14… Since the word ‘modesty’ has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour scrupulous chastity of thought speech and conduct". The word `modest in relation to woman is defined in the above dictionary as "decorous in manner and conduct not forward or lewd shamefast". Webster s Third New International Dictionary of the English language defines modesty as freedom from coarseness indelicacy or indecency a regard for propriety in dress speech or conduct". In the Oxford English Dictionary the meaning of the word ‘modesty’ is given as "womanly propriety of behaviour scrupulous chastity of thought speech and conductreserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". After taking into account the dictionary meaning of the term “modesty” the Hon’ble Supreme Court came to the following finding “From the above dictionary meaning of `modesty and the interpretation given to that word by this Court in Major Singh s case it appears to us that the ultimate test for ascertaining whether modesty has been outraged is is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case keeping in view the total fact situation it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady "sexual overtones" or not notwithstanding.” 15. Thus it is contended by Mr. Banerjee that any act which is capable of shocking the sense of decency of a woman amounts either to outraging modesty or insulting the modesty of a woman depending upon the specific act committed by the accused. 16. According to Mr. Bhattacharjee time has come to revisit the contemporary idea of the term modesty and redefine it. In order to substantiate his argument he refers to paragraph 24 at page 56 of Justice J. S Varma committee report on amendments to Criminal Law. Section 24 states: “The concept of dignity under Article 21 is also significant and it must be noticed that it is conjoined by the preceding expression ‘right to life’. We are of the opinion that any form of violence or assault sexual or otherwise on women is a violation of the fundamental right to live with dignity. We also are in agreement with the view expressed that substantive due process in State action is mandatory to ensure the right to live with dignity. However the issue before us is not simply the redrafting of existing laws but also the need to reassert and reaffirm that the State has primary obligations under the Constitution to secure fundamental rights of its citizens. The fundamental rights of women include safety and bodily integrity. The said rights in turn include secure spaces where they can exercise autonomy and freewill.” 17. He also refers to the definition of “discrimination against woman under Article 1 of convention on the elimination of all form of discrimination against womanDuring the month of January 2017 political turmoil and tension prevailed in national politics with the arrest of a leader of the opposition parliamentary party in a criminal b) On 3rd January 2017 a debate under the name and title of “Buck Stops Here” was telecast by NDTV 24 X 7 in its prime slot. c) In the said debate the petitioner represented the ruling political party and the opposite party No.2 represented the party in the opposition in Lok Sabha. d) In the said debate the petitioner asked the opposite party No.2 “Mohua are you on Mohua ” e) The anchor moderator of the debate intervened and asked the petitioner not to make any personal comment against the opposite party No.2. 13. Before this Court the petitioner has taken stand that the said remark was an accidental slip. He never intended to say raise a question as to whether the opposite party No.2 was in drunken condition and thirdly even assuming that the petitioner made the remark suggesting the opposite party under influence of liquor such statement does not amount to insulting the modesty of the petitioner as the essence of modesty is her sex. 14. The learned Advocate for the opposite party on the other hand strenuously argued that the concept of modesty concerns with femininity including sex. Thus according to him the term “modesty” must have wider connotation that includes all tenets of femininity or womanhood. 15. The Hon’ble Supreme Court time and again in various pronouncements defined the term “modesty”. In the following words “the essence of a woman’s modesty is her sex”. In Major Singh modesty has been defined as sexual dignity of a woman which is acquired by her since the time of her birth. It is a virtue attached to a woman owing to her sex. It is pertinent to mention that Section 354 which is a penal provision for assault or criminal force to woman with intent to outrage her modesty find place in chapter XVI under the heading “Of Offences Affecting the Body Of Offences Affecting Life”. On careful reading of the judicial pronouncement by the Hon’ble Supreme Court in various cases it is found that the test for ascertaining if modesty has been outraging or not lies on determination of the question as to whether the act by the accused is capable of shocking the sense of decency of the woman. The sense of decency of the woman if considered to explain the term “modesty” within the meaning of Section 354 is her sex. In the words of Bachawat J. “the modesty of an adult female is writ large on her body. Young or old intelligent or imbecile awake or sleeping the woman possesses the modesty capable of being outraged.” Similarly where a woman is made to feel ashamed of her sexual dignity i.e lowering the sexual honour of a woman in her own eyes she feels insulted within the meaning of Section 509 of the Indian Penal Code. 17. Sexual harassment disrobing a woman voyeurism and stalking within the meaning of Section 354A 354D deal with specific Act of violation of woman’s sex by such act by the accused. 18. The definition of modesty as laid down in Major Singh was even followed by subsequent decisions including Ramkripal vs. State of M.P reported in AIR 2007 SC 3704 SCC 371. Bearing the observation made by the Hon’ble Supreme Court with regard to the definition of modesty in mind let me now deal with the issue raised by the learned Advocate for the opposite party No.2 in the light of the observation of Justice J. S Varma Committee and Article 1 of CEDAW as to whether modesty is synonymous to feminity or womanhood even not attributable to her sex. 20. Webster defines the word “femininity” as “the quality or nature of the female sex: the quality state or degree of being feminine or womanly : The Cambridge Dictionary defines femininity as the fact or quality having characteristics that are traditionally thought to be typical of or suitable for a woman. Therefore femininity is a set ofqualities behaviour and role generally associated with woman and girls. Feminine characteristics include gentleness empathy humility sensitivity. It is generally used as antonym to masculine. The penal code recognizes assault criminal force or insult of woman’s modesty as offence. When the essence of modesty has been described as the sex of a woman by the Hon’ble Supreme Court by no stretch of imagination the definition can be widened to include an assault or insult on the qualities of goodness sensitivity gentleness empathy etc of a woman. 21. For the reasons stated I am not in a position to accept the argument advanced by the learned Advocate for the opposite party No.2 and the learned P.P. 22. Now comes to the question as to whether under the facts and circumstances of the case the FIR and the charge sheet can be quashed. In the case of State of Haryana vs. Bhajanlal reported in AIR 1992 SC 604 the Apex Court has laid down the following seven categories of cases in which court can quash criminal proceedings : 1) where the allegations made in the FIR even if taken at face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused 2) where the allegations in the First Information Report and other materials if any accompanying the F.I.R. do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3) where the allegations made in the FIR and the evidence in support of the same do not disclose the commission of any offence and make out a case against the accused 4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer unless a Magistrate has issued an order for the same as contemplated under Section 155(2) of the Code 5) where the allegations made in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding instituted with regard to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and or personal grudge. 24. From the above discussion I have already come to the conclusion that the allegation in the first information report and other materials accompanying the FIR do not disclose any cognizable offence under Section 509 of the IPC. Therefore the charge sheet being No.27 dated 08.03.2017 filed under Section 509 of the Indian Penal Code is liable to be quashed. 25. Before I part with I am not unmindful to note that both the petitioner and the opposite party No.2 were at the relevant point of time elected representatives of the people. They are the mouth pieces of the general mass of the country. The petitioner was not only an elected Member of Parliament but also a Minister of State of the Central Government. It is expected from a representative of the people that he must be courteous in his behavior dignified in his manners and cautious on his words spoken by him. It is undisputed that in course of a political debate the petitioner asked the opposite party No.2 as to whether she was intoxicated. The opposite party No.2 was at the relevant point of time an elected member of West Bengal Legislative Assembly and National Spokesperson of rival political party. She was not only a public figure but is a woman. It is the Constitutional mandate under Fundamental Rights Fundamental Duties and Directive Principles of state policy that dignity of woman must be protected and freedom of speech and expression enshrined in Article 19(1)(a) is subject to reasonable restrictions and one of such restrictions is penal provision against defamation. The petitioner it is already stated at the relevant point of time was a Member of Parliament. He took solemn oath to bear faith and allegiance to the constitution. By making such defamatory statement to a woman the petitioner prima facie not only humiliated dignity and honour of a woman but also violated his constitutional oath. If doubt is raised in the mind of people from the utterances made by the petitioner that the at the relevant point of time she was drunken and intoxicated this would of course an act of imputation intending to harm the reputation of the opposite party No.2 and such deliberate utterance made by the petitioner was defamatory statement within the meaning of Section 499 of the Indian Penal Code. In this regard I am not in a position to accept the submission made by the learned counsel for the petitioner that the said statement was an accidental slip of words not intended to defame the opposite party No 2. 27. However I am not in a position to direct the trial court to take cognizance of offence against the petitioner under Section 500 of the Indian Penal Code for the reasons stated herein below: 28. Section 500 of the Indian Penal Code is a non cognizable offence in S. Khushboo vs. Kanniammal & Ors reported in5 SCC 600 the Hon’ble Supreme Court has observed “It may be reiterated here that in respect of the offence of defamation Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate s Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However in given facts of the present case we are unable to see how the complainants can be properly described as persons aggrieved within the meaning of Section 199(1)(b) Cr.PC. As explained earlier there was no specific legal injury caused to any of the complainants since the appellant s remarks were not directed at any individual or a readily identifiable group of people”. 29. The ratio of the aforesaid decision is that no Court shall take cognizance of an offence punishable under Section 500 of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. 30. The word complaint is defined in Section 2(D) of the Code of Criminal Procedure which runs thus: complaint" means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but does not include a police report. 31. Thus cognizance of offence punishable under Section 500 of the IPC cannot be taken in the absence of the complaint in writing specifically filed by the complainant before the Magistrate on the basis of police report only which is barred under Section 199 of the Code of Criminal procedure. In the instant case the complainant has not made any complaint before the jurisdictional magistrate. Moreover even where the FIR contained the allegation under Section 500 of the Code of Criminal Procedure police did not take permission of investigation of the allegation which discloses a non cognizable case under Section 500 of the Indian Penal Code of the jurisdictional magistrate. 33. For the reasons aforesaid I have no other alternative but to hold that the charge sheet does not disclose commission of any offence under Section 509 of the Indian Penal Code against the accused. Secondly the allegations in the FIR constitute only a non cognizable offence under Section 500 of the Code of Criminal Procedure and no investigation is permitted by police officer unless a Magistrate has issue an order for the same as contemplated under Section 155(2) of the Code of Criminal Procedure. Thirdly further proceedings of CGR Case No.617 on the basis of charge sheet No.27 dated 08.03.2017 will be abused of the process of the Court. In view of the above discussion the instant criminal revision under Section 482 of the Code of Criminal Procedure is allowed on contest however without cost. The connected applications are also disposed of. 35. However the opposite party No 2 is at liberty to take any action according to law if available to her against the petitioner before the appropriate forum and in such case the learned Court below will take appropriate steps without being influenced or swayed over by any observation made by this Court in this judgment. Bibek Chaudhuri J.)

“Response to the query would be an answer either affirmative or negative, depending on the available records…”: Appellate Authority, SEBI, Part 3.

Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. After perusal of the 2nd query and the response provided thereto. It is observed that the appellant sought whether the letter referred therein, was received by SEBI. Appellate authority did not agree with the respondent that the said query does not fall under the purview of information as defined under the RTI Act, since response to the query would be an answer either affirmative or negative, depending on the available records. Therefore, the respondent shall reconsider the request and provide an appropriate answer. It was noted that the appellant, vide query number 3, inter alia, sought details of letters sent by him through Speed Port/ Registered Post/ emails. Mr Singh was of the view that if the appellant has sent the letters, he should have copy of the same along with details of the date sent. It is also understood that the date of delivery of the letter sent by speed post/ registered post, can also be tracked. It was noted that the information was already in the possession of the citizen cannot be said to be “held” by the public authority. In this context, reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors. (order dated January 24, 2008), wherein the Hon’ble CIC held that “Further, the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party/ applicant himself possesses an information which he has sought from a public authority, such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information, therefore, is already in appellant’s possession and cannot therefore be said to be “held”-much less “exclusively held”-by the public authority in terms of Section 2(j) of the RTI Act.”. In view of these observations, it was remitted the application dated 2nd of April, 2021 to the respondent for reconsidering query number 2, and to provide appropriate response within 15 working days from the date of receipt of this order.

Appeal No. 42921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42921 Swaminath Singha CPIO SEBI Mumbai The appellant had filed an application dated April 02 2021under the Right to Information Act 2005against the said response dated May 07 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. Ground of appeal On perusal of the appeal it appears that the appellant is aggrieved by the response provided by the respondent. The queries and the response provided thereto are discussed in the following paragraphs in light of the submissions made by the appellant. Before analysing the queries and the responses I note that the appellant being director of Apna Pariwar Agro Farming Developers India Ltd. was one of the noticees in the proceedings wherein the order dated May 3 2018 was passed and directions for refund of money were issued. 4. Query number 1 The appellant in his application referred to letter No. F.No.13 02 …. PM dated September 24 2019 from Smt. Tamana Sinha Deputy Director as per direction of Smt. Nirmala Sitharaman Hon’ble Sinance Minister. The appellant also sought the following information: “1. Are you the Hon’ble Executive Director of SEBI 2. Have you received the letter as ventilated in the reference above If yes please mention the date and time of receiving 3. How many letters have you received from me through speed post Regd post emails Please mention the date and time of receiving. 4. Have you responded to any of the letters emails etc. Please mentioned the same accordingly. 5. Have you seen the Sl. No. 19(1197217) dt. 10.7.2019 of the letter as mentioned in the Ref above 6. Today is 626 days have you sent any information to the Hon’ble Finance Minister in respect of your compliance of the most urgent letter Appeal No. 42921 7. What is the time limit of “Most urgent” matter in the constitution of India 8. Have you taken all the landed properties of the Aapna Pariwar Agro Farming Development India Ltd. 9. What is being done with the said properties Have you seen the Resolution of the Full body Directors dt. 14.5.2014 where it is mentioned Swaminath Singha was a Director in paper only 10. Should I request your Honour to withdraw the bars as placed on my Accounts 11. Do you follow the Lydford Law Would you allow a citizen of India to live in the light of Article 21 of the Constitution of India ” The respondent in response to the query numbers 1 to 11 observed that the same are in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. 6. Query numbers 1 4 5 6 7 8 9 10 and 11 I perused the query numbers 1 4 5 6 7 8 9 10 and 11. On consideration I agree with the observation of the respondent that the queries are in the nature of eliciting a clarification or opinion of the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2 f) of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to Information RTI) Act the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations I do not find any deficiency in the response. 7. Query number 2 I have perused the query and the response provided thereto. It is observed that the appellant sought whether the letter referred therein was received by SEBI. I do not agree with the respondent that the said query does not fall under the purview of information as defined under the RTI Act since response to the query would be an answer either affirmative or negative depending on the available records. Therefore the respondent shall reconsider the request and provide an appropriate answer. 8. Query number 3 I note that the appellant vide query number 3 inter alia sought details of letters sent by him through Speed Port Registered Post emails. I am of the view that if the appellant has sent the letters he should have copy of the same along with details of the date sent. It is also understood that the date of delivery of the letter sent by speed post registered post can also be tracked. I note that the information Appeal No. 42921 which is already in the possession of the citizen cannot be said to be “held” by the public authority. In this context reference is made to the matter of Shri S.P. Goyal vs. Shri Pragati Kumar & Ors.wherein the Hon’ble CIC held that “Further the obligation of a respondent extends only to providing information which it “holds” or controls in terms of Section 2(f) of the RTI Act. If it can be established through evidence that a party applicant himself possesses an information which he has sought from a public authority such information can be denied to him. This appellant has already been provided the judgement dated 30.3.2007 of the Income Tax Appellate Authority. The information therefore is already in appellant’s possession and cannot therefore be said to be “held” much less “exclusively held” by the public authority in terms of Section 2(j) of the RTI Act.” In view of these observations I am of the view that the respondent is not obliged to provide the information sought by the appellant. In view of these observations I remit the application dated April 02 2021 to the respondent for reconsidering query number 2 and to provide appropriate response within 15 working days from the date of receipt of this order. The Appeal is accordingly disposed of. Place: Mumbai Date: July 07 2021 AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The warrants either bailable or non-bailable should never be issued by Courts without proper scrutiny of facts and complete application of mind: High Court of Delhi

The attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant and it is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to Computerize and reduce into immutable formulae on the basis of which this discretion is exercised. The issuance of non-bailable warrants involves interference with personal liberty, Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful. These were stated by High Court of Delhi consisting, Justice Rajnish Bhatnagar in the case of Afzal Ahmed vs. State [CRL.M.C. 176/2022] on 24.01.2022. The facts of the case are that the petitioner could not appear before the trial court timely and at 11.30 am the trial court issued non bailable warrants against the petitioner and also forfeited the bonds. The petitioner at around 12.30 pm appeared before the trial court, and moved an application for cancellation of his warrants on the ground that he got late because his motorcycle went out of order, so he could not reach the court on time. Non-appearance of the petitioner on time was neither intentional nor deliberate, however he was diligent and has moved the application for cancellation of warrants on the very same day in pre-lunch session. Further, the petitioner was taken into custody by the learned trial court. Therefore, a petition was filed by the petitioner under Section 482 Cr.P.C. seeking cancellation of NBWs issued against the petitioner and for setting aside of the impugned order. The Counsel for the petitioner submitted that warrants were issued by the trial court during the early hours of morning, and that the petitioner moved the application for cancellation of warrants on the same very day, shows his bonafide. He further submitted that non-bailable warrants should not be issued casually and mechanically as the same involves interference with the personal liberty of an individual. The Counsel for the respondent submitted that two police witnesses were present on the said date, and because of non-appearance of the accused-petitioner the witnesses had to be sent back unexamined. It was submitted by the witnesses that they couldn’t wait further as they had to attend their duties. As two witnesses were present in the morning and they could not be examined due to non-appearance of accused, it was contended that his non-appearance appeared intentional. The High Court of Delhi held that the attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant and it is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to Computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, and circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State. The issuance of non-bailable warrants involves interference with personal liberty, Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful. 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 ensue on issuance of warrants. The Court, by keeping in view the totality of facts and circumstances application moved by the petitioner did not find favour with the learned trial court resulting in its dismissal on the very same day and petitioner was taken into custody, therefore, it was held that the impugned order in these circumstances cannot be sustained and was accordingly set aside.

VIA VIDEO CONFERENCING) IN THE HIGH COURT OF DELHI AT NEW DELHI 24th January 2022 CRL.M.C. 176 2022 AFZAL AHMED Petitioner Through: Mr. Aditya Aggarwal Adv. and Mr. Ankit Mutreja Adv. STATE Through: Ms. Rajni Gupta APP for the State. Respondent HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J. This is a petition filed by the petitioner under Section 482 Cr.P.C. seeking cancellation of NBWs issued against the petitioner and for setting aside of the impugned order dated 22.12.2021. It is submitted by the counsel for the petitioner that the matter was listed for hearing on 22.12.2021 before the trial court but the petitioner could not appear before the trial court timely and at 11.30 am the trial court issued non bailable warrants against the petitioner and also forfeited the bonds. The petitioner at around 12.30 pm appeared before the trial court and moved an application for cancellation of his warrants on the ground that he got late because his motorcycle went out of order so he could not reach the court on time. It is further submitted by the counsel for the petitioner that CRL.M.C. 176 2022 non appearance of the petitioner on time was neither intentional nor deliberate however he was diligent and has moved the application for cancellation of warrants on the very same day in pre lunch session. It is further submitted by the counsel for the petitioner that petitioner was taken into custody by the learned trial court. I have perused the order dated 22.12.2021. The impugned order reads as follows: “Hearing is resumed at 11:30 am. Sh. Masood Ahmad Ld. Addl. PP for the State. Accused Md. Aizaz @ Patila and Md. Faizal in person on Put up for report on the warrants appearance of the accused on 02 In the above facts witnesses are discharged unexamined for today Bail bonds furnished by accused Afzal Ahmad are forfeited. Issue NBW against accused Afzal Ahmad and notice u s 446 Cr.P.C It is submitted by the witnesses that they cannot wait further as they have to attend their duties. and they be summoned again for the next date of hearing. to his surety for the next date of hearing. 02 2022 At this stage at 12:30 pm file taken up again on the appearance of accused Afzal Ahmed and moving of application seeking cancellation of It is stated by accused that he could not appear in the Court at the time of call as his motorcycle went out of order and he reached at 12:00 noon in the Court. Upon query he stated that he left his house situated at Ghaziabad to Come to Court at 10:30 am. Considering the facts where two witnesses were present in the morning and they could not be examined due to non appearance of accused his non appearance appears intentional. As such his application for cancellation of warrants is dismissed. His bail bonds has been forfeited. Sd Special JudgeASJ North East Delhi 22.12.2021 Accused Afzal Ahmed is present with Ld. Proxy Counsel Sh. S.Wajid CRL.M.C. 176 2022 Witnesses be summoned for next date. Accused Afzal Ahmed is taken into custody and he be produced on next date of hearing i.e 02 02 2022. It has been mainly submitted by the counsel for the petitioner that Sd Special JudgeASJ North East Delhi 22.12.2021” warrants were issued by the trial court during the early hours of morning and it is further submitted that petitioner has moved the application for cancellation of warrants on the same very day which shows his bonafide. Counsel for the petitioner has placed reliance upon the judgment in the case of Inder Mohan Goswami and Anr. Vs.State of Uttranchal and Ors. 12 SCC 1 to submit that non bailable warrants should not be issued casually and mechanically as the same involves interference with the personal liberty of an individual. He has also placed reliance upon the judgment in the case of Pratap Verma Vs. StateCrl. M.C. It is submitted by learned APP that two police witnesses were present on the said date and because of non appearance of the accused petitioner the witnesses had to be sent back unexamined. I have heard the counsel for the petitioner and learned APP for the 8. In Inder Mohan GoswamiHon’ble Supreme Court discussed the issue as to how and when warrants should be issued by the Court. The relevant observations find mention in para 47 to 57 and it will be advantageous to reproduce the same which is as follows: 47. Before parting with this appeal we would like to discuss an issue CRL.M.C. 176 2022 which is of great public importance Le. how and when warrants should be issued by the Court It has come to our notice that in many cases that bailable and non bailable warrants are issued casually and mechanically. In the instant case the court without properly comprehending the nature of controversy involved and without exhausting the available remedies issued non bailable warrants. The trial court disregarded the settled legal position clearly enumerated in the following two cases. 48. In Omwati v. State of UP and Anr. this Court dealt with a rather unusual matter wherein the High Court firstly issued bailable warrants against the appellant. And thereafter by issuing non bailable warrants put the complainant of the case behind bars without going through the facts of the case. This Court observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days but without any justification. Whatsoever. She suffered because facts of the case were not considered in proper perspective before passing the orders. The court also observed that some degree of care is supposed to be taken before issuing warrants 49. In State of U.P. v. Poosu and Anr. 2976 Cri L 1373 at para 13 page 5 the Court observed Whether in the circumstances of the case the attendance of the accused respondent can be best secured by issuing a bailable warrant or non bailable warrant is a matter which rests entirely in the discretion of the court. Although the discretion is exercised judiciously it is not possible to Computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking the court would take into account the various factors such as the nature and seriousness of the offence the character of the evidence circumstances peculiar to the accused possibility of his absconding larger interest of the public and the State. Personal liberty and the interest of the State CRL.M.C. 176 2022 50 Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776 French Declaration of the Rights of Men and the Citizen 1789 Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice liberty is the natural and inalienable right of every human being. Similarly Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law 51. The issuance of non bailable warrants involves interference with personal liberty Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore the courts have to be extremely careful before issuing non 52. Just as liberty is precious for an individual so is the interest of the society in maintaining low and order. Both are extremely important for the survival of a civilized society sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period only then the non bailable warrants should be issued. When non bailable warrants should be issued 53. Non bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: It is reasonable to believe that the person will not voluntarily appear in Court or serve him with a Summon or not placed into custody immediately. the police authorities are unable to find the person to it is considered that the person could harm someone if 54. As far as possible if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court the summon or the bailable warrants should be preferred. The warrants either bailable or non bailable should never be issued without proper CRL.M.C. 176 2022 scrutiny of facts and complete application of mind due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique 55. In complaint cases at the first instance the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons the court in the second instance should issue bailable warrant. In the third instance when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally the process of issuance of the non bailable warrant should be resorted to Personal liberty is paramount therefore we caution courts at the first and second instance to refrain from issuing non bailable warrants. 56 The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight jacket formula for issuance of warrants but as a general rule unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law issuance of non bailable warrants should be avoided. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non bailable warrant. In Naresh Kumar(supra) the situation was substantially similar. The 9. accused could not appear in the Court in time due to change in Court Room. His non bailable warrants were issued at 10:30 a.m. He appeared before Learned MM at about 10:40 a.m. He thereafter moved an application for cancellation of non bailable warrants. Instead of considering the application the same was adjourned and execution of non bailable warrants was not CRL.M.C. 176 2022 stayed. Facing threat of arrest the petitioner approached this Court. Provisions of Rule 3 of Chapter 1 part0C(i) in Part III of Delhi High Court Rules were referred which reads as under: “Rule 3. Warrant should not be issued unless absolutely necessary “Great care should be taken not to issue a warrant when a summon should be sufficient for the ends of justice. Magistrate should remember that the issue of a warrant involves interference with the personal liberty of a person and should take care to see that no greater hardship is caused than is necessary. Under Section 76 of the Code o Court has the discretion to make the warrant bailable and this discretion should be exercised with due regard to the nature of the offence the position of the accused person and the circumstances of the case.” In Puneet Singh Chauhan & Anr. Vs. State & Anr. 207(2003) DLT 10. 220 it has been observed that the Trial Courts are acting contrary to the aforesaid mandate of law while issuing non bailable warrants on the very first call and in the pre lunch hours. If an accused tries to evade the process of law or intentionally delays the proceedings the Magistrate has the power to issue non bailable warrants. Such a power is however to be exercised only in those circumstances and not lightly and not in terrorem. In the instant case perusal of the order shows that two prosecution witnesses namely Inspector Nafe Singh and ASI Fatesh Singh were present for their examination but could not be examined because of non appearance of the petitioner. The order reveals that petitioner appeared before the trial court at about 12.30 pm on the very same date and an application for cancellation of the warrants was moved but the learned trial court dismissed the application and forfeited the surety. 12. The bonafides of the petitioner are reflected from the fact that on the CRL.M.C. 176 2022 same very day rather in pre lunch session itself he has moved an application for cancellation of his warrants explaining reasons for his getting late in reaching the court. As far as the presence of two police officials was concerned no doubt they were sent unexamined by the trial court but the trial court should not have issued NBWs against the petitioner in early hours of the day and on appearance of the petitioner could have put him to terms rather than taking him into custody. There is nothing in the impugned order to show that the petitioner is guilty of such conduct on previous occasions also. So keeping in view the totality of facts and circumstances application moved by the petitioner did not find favour with the learned trial court resulting in its dismissal on the very same day i.e 22.12.2021 and petitioner into custody therefore impugned order circumstances cannot be sustained and is accordingly set aside. Personal bond and surety bond are restored and petitioner be released forthwith from the Jail if not wanted in any other case. 13. The petition stands disposed of accordingly. 14. Digitalized copy of this order be also sent to the concerned Jail Superintendent for immediate release of the petitioner. JANUARY 24 2022 ib RAJNISH BHATNAGAR J CRL.M.C. 176 2022

Roles of directors must be specified if allegations are made holding them liable for the conduct of the company: High Court of Telangana

The Hon’ble Justice B. Vijaysen Reddy judged a case dealing with section 138 of the Negotiable Instruments Act, where he held that “Mere assurance of payment or selection of jewelry cannot be the basis to rope in the petitioners. It is vaguely stated in the complaint that the petitioners are directors and responsible for the day-to-day affairs of the A1 company. But in the given facts and circumstances of the case and particularly the uncontroverted claim of the petitioners that they are household ladies, this Court is of the opinion that vague and omnibus against the petitioners/directors as being responsible for the day-to-day affairs of A1 company is not sufficient. Mere verbatim reproduction of the words contained in Section 141 of the Negotiable Instruments Act without any specific role attributed to each of the petitioners in the A1 company, cannot be the basis to prosecute the petitioners, as the same would unjust and result in abuse of process of law”. This case was Smt. Akkinapalli Sujatha & others Vs. The State of Telangana [CRIMINAL PETITION No.8231 of 2011]   Brief facts of the case are, the complainant is a wholesale dealer in gold. A1 is the jewelry shop. A2 is the Managing director of A1. A3 to A9 are the directors of the company. A2 to A9 visited the complainants shop to do business transactions. They shopped for Rs. 25,49,121. They paid through 2 cheques; one worth Rs. 4,75,000/- and the other Rs.20,74,121/-. Both these cheques were dishonoured. The complainant sent a statutory notice to A1 to A9 which was returned with an endorsement ‘not claimed’. He then filed a case before the Hon’ble High Court. The counsel for the petitioners contends that A3-A9 have resigned from A1 company. Furthermore, since A2 has signed on these cheques, he must be held liable for such a dishonour. After hearing both the counsels, the High court observed that occupation in the cause title of the petition of the petitioners No. 5,7,8 and 9 was ‘house wife’. The learned judge was of the opinion that “though allegations are made against all the petitioners that they have selected the jewelry and assured payment to complainant, such facts are not relevant to prosecute them for the offence under Section138 read with Section 141 of the Negotiable Instruments Act. The petitioners are neither signatory of the cheques nor in any way responsible for issuance of the subject cheques. Accused No.2 is said to be the Managing Director, who signed the cheques.”   The court placed heavy reliance on National Small Industries Corporation v. Harmeet Singh Panital [(2010) 3 SCC 330] wherein the supreme court held that, “It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability.”

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT: HYDERABAD CORAM: THE HON’BLE SRI JUSTICE B. VIJAYSEN REDDY CRIMINAL PETITION No.82311 Delivered on: 10 06 2021 Smt.Akkinapalli Sujatha & others ... Petitioners The State of Telangana. Public Prosecutor High Court of Telangana Hyderabad & another ... Respondents For Petitioners For Respondents N VINESH RAJ < Gist Head Note Cases Referred PUBLIC Prosecutor2014) 16 SCC 1 Mr. P RAMACHANDRAN THE HON’BLE SRI JUSTICE B. VIJAYSEN REDDY CRIMINAL PETITION No.82311 ORDER: This criminal petition is filed by the petitioners accused Nos.5 7 8 and 9 to quash the proceedings in CC.No.10110 on the file of the II Additional Chief Metropolitan Magistrate Hyderabad. The complaint in CC.No.10110 is filed by the respondent No.2 to prosecute the petitioners for the offence under Section 138 of the Negotiable Instruments Act. It is alleged in the complaint that the complainant is a wholesale dealer in gold and jewellery business run in the name of M s. Sanghi Jewellers Private Limited. A1 is the Jewellery Shop situated at Sapthagiri Complex KPHB Colony Hyderabad. A2 is the Managing Director of the A1 company and signatory of the subject cheques. A3 to A9 are the Directors of A1 company. In the month of July 2010 A2 to A9 visited the complainant’s jewellery shop at Hyderguda Hyderabad. A2 to A9 represented that they are interested in doing business transactions in the complainant company. They also stated that the complainant company is known for designer jewellery adhering to the contemporary standards. On the representation of A2 to A9 the complainant believing their version showed them various types of jewellery pertaining to men and women. A5 A6 A7 A8 and A9 selected various jewellery items like necklace ear rings etc. as they are women they showed keen interest in selecting jewellery. They assured the complainant that they going to be permanent customers and would place more orders on various occasions like marriage season festivals like Akshaya Tritiya. A2 A3 and A4 selected 3 various kinds of jewellery like bracelets rings etc. and placed orders for the same. It is alleged that A2 to A9 purchased gold ornaments worth about Rs.25 49 121 and issued two cheques drawn on Allahabad Bank Balangar Branch and Axis Bank Kukatpally Branch and assured that the cheques would be honoured on their presentation. Believing the representation of the accused the complainant presented the cheques with its bank SBI Koti Branch Hyderabad which were dishonoured with an endorsement ‘insufficient funds’. The cheque dated 26.06.2010 for a sum of Rs.4 75 000 was dishonoured on 01.07.2010 and another cheque dated 03.07.2010 for a sum of Rs.20 74 121 was dishonoured on 17.07.2010. The complainant informed about the dishonoured cheques to A2 to A9 and went personally to their shop and residences and expressed his anguish over failure of the accused to fulfill their commitment. A2 to A9 gave evasive replies and assured to settle the matter amicably but failed to fulfill their commitment. It is alleged that at the time of issuing cheques the accused were well aware there were no sufficient funds in the accounts maintained by them in the bank. After statutory notice dated 28.07.2010 was issued A1 to A9 calling upon them to pay cheque amount within 15 days notices were received by A2 to A5 and A7 to A9 on 30.07.2010. The legal notice sent to A1 and A6 was returned back with an endorsement ‘not claimed’. A1 company along with A2 to A9 who are Directors thus committed offence punishable under Section 138 of the Negotiable Instruments Act. The petitioners accused contend that all of them have resigned from A1 company with effect from 02.07.2010 and Form 32 to that 4 effect was issued by the Registrar of Companies. The company was wholly managed and operated by A2 who is the Managing Director and involved in the day to day affairs of the company. The petitioners though are Directors did not have direct access to the purchases or sales or to the accounts or to the receipts or payments pertaining to the business of A1 company. It is only A2 who was responsible for the affairs of A1 company. From 02.07.2010 onwards the petitioners are no way concerned with A1 company since they have resigned as Directors and by suppressing the same the present complaint is filed. It is further contended that the respondent No.2 also filed a recovery suit in O.S.No.388 of 2010 on the file of the III Additional Chief Justice City Civil Court Hyderabad. There is no allegation in the suit proceedings that the petitioners have approached the complainant and taken the gold ornaments and that they have selected ornaments and contradictory statement is made in the instant complaint. All the petitioners Accused Nos.5 7 8 and 9 are household ladies. Their occupation in the cause title of the petition is shown as ‘House wife’. The same is not controverted by the counsel for the complainant. Though allegations are made against all the petitioners that they have selected the jewellery and assured payment to complainant such facts are not relevant to prosecute them for the offence under Section138 read with Section 141 of the Negotiable Instruments Act. The petitioners are neither signatory of the cheques nor in any way responsible for issuance of the subject cheques. Accused No.2 is said to be the Managing Director who signed the The prosecution under Section 138 of the Negotiable Instruments Act is against persons who have issued the cheque which is later dishonored. Mere assurance of payment or selection of jewellery cannot be the basis to rope in the petitioners. It is vaguely stated in the complaint that the petitioners are directors and responsible for the day to day affairs of the A1 company. But in the given facts and circumstances of the case and particularly the uncontroverted claim of the petitioners that they are household ladies this Court is of the opinion that vague and omnibus against the petitioners directors as being responsible for the day to day affairs of A1 company is not sufficient. Mere verbatim reproduction of the words contained in Section 141 of the Negotiable Instruments Act without any specific role attributed to each of the petitioners in the A1 company cannot be the basis to prosecute the petitioners as the same would unjust and result in abuse of process of law. In POOJA RAVINDER DEVIDASANI v. STATE OF the Supreme Court made “… Time and again it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time will not be liable for an offence Under Section 141 of the N.I. Act. In National Small Industries Corporation this Court observed: Section 141 is a penal provision creating vicarious liability and which as per settled law must be strictly construed. It is therefore not sufficient to make a bald cursory statement in a complaint that the Director arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and 116 SCC 1 in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes especially where such statutes create vicarious liability. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements Under Section emphasis supplied) 27. Unfortunately the High Court did not deal the issue in a proper perspective and committed error in dismissing the writ petitions by holding that in the Complaints filed by the Respondent No. 2 specific averments were made against the Appellant. But on the contrary taking the complaint as a whole it can be inferred that in the entire complaint no specific role is attributed to the Appellant in the commission of offence. It is settled law that to attract a case Under Section 141 of the N.I. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. But in this case the Appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that there is any act committed by the Appellant from which a reasonable inference can be drawn that the Appellant could be vicariously held liable for the offence with which she is In POOJA RAVINDER DEVIDASANI’s case the Supreme Court allowed the quash petition not only on the ground that there is no specific role attributed to the appellant but also on the ground that the appellant has resigned as Director much prior to issuance of the cheque. The Supreme Court taking into consideration its earlier decisions in National Small Industries Corporation v. Harmeet Singh Panital 3 SCC 330] Gunmala Sales Private Ltd. v. Anu Mehta 1 SCC 103] and Pepsi Foods Ltd. v. Special Judicial Magistrate 5 SCC 343] reiterated the ratio that a complaint where no specific role is attributed to the Director Accused is liable to be quashed. In the light of the above observations this Court is not inclined to go into the other point regarding resignation of the petitioners as Directors on 02.07.2010 which is unnecessary. Accordingly the criminal petition is allowed and the proceedings in CC.No.1011 of 2010 on the file of the II Additional Chief Metropolitan Magistrate Hyderabad against the petitioners accused Nos.5 7 8 and 9 are hereby quashed. Pending miscellaneous petitions if any shall stand closed. June 2021 B. VIJAYSEN REDDY J

Section 9 of the Arbitration and Conciliation Act, 1996 vests wide powers with the Court for granting interim orders, at all stages of an arbitration proceeding: Delhi High Court.

Section 9 of the Arbitration and Conciliation Act, 1996 said that a party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court. The judgment was given by the High court of Delhi in the case of Narangs International Hostel private limited vs. Delhi International Airport Limited. Case No: [294/2021 &amp; I.A. 10860/2021] By the Hon’ble Mr. Sanjeev Narul Justice. The counsel for petitioner was Mr. Kapil Sibal &amp; Mr. Akhil Sibal and counsel for respondent represented by Dr. Abhishek Manu Singhvi, Senior Advocate with Mr. Anuj Berry, Mr. Chaitanya Safaya, Mr. Amit Bhandari and Ms. Prerna Acharya, Advocates. The International Airports Authority of India granted lease of airport land to NIHPL for the “purpose of carrying on flight catering business at the Delhi Airport, Palam” for a period of 30 years (ending on 31st August 2011), by way of a Lease Deed dated 20th August, 1982. Clause 19 of General Condition of contract contained an arbitration clause. DIAL became AAI’s successor-in-interest for the Original Lease Deed by way of an Operations, Maintenance and Development Agreement dated 04th April 2006, executed between AAI and DIAL, in respect of IGI Airport. The Original Lease Deed also provided “an option of extension upto 10 years” in its recital. A meeting was held between NIHPL, DIAL &amp; AAL where lease was extended for a period of 10 year. NIHPL contends that shortly thereafter, DIAL started pressurizing it to enter into a license agreement instead of the lease, and threatened to disallow access of airport to NIHPL for providing in-flight catering services. In 2016, once again, faced with DIAL’s denial of access to the Airport, NIHPL approached this court by way of a writ petition, which was disposed of by recording statement of DIAL that the Original Lease Deed stands extended till August 2021 and that DIAL would extend the necessary permits and passes for access to the Airport premises. The counsel for petition said that DIAL had been constantly pressurizing NIHPL to enter into a license agreement even the fact that DIAL &amp; NIHPL are signatories’ member wherein, the parties agreed to extend the original lease deed for a period of 10 year. Even after entering into the agreement dated 2009 as well as the SLA dated 17th May 2013 with NIHPL, DIAL has been taking a dishonest stand that there is no valid lease, and hence, NIHPL must enter into a license with DIAL on terms divergent from the subsisting lease. The counsel further stated that the livelihood of 1500 employees along with their families will be at stake, if relief is not granted to NIHPL with immediate effect. The counsel for respondent said that, there is unexplained delay and laches on the part of NIHPL in not approaching the court earlier. The counsel further said that the SLA is void and invalid, and thus NIHPL has no right to seek extension of the lease. The counsel said that in terms of Section 14(d) of the Specific Relief Act, 1963, a determinable contract cannot be specifically enforced, and therefore an interim injunction cannot be granted. The court analysis and find that, for grant of relief of injunction, the court is guided by the principles applicable to Order 39 Rules 1 &amp; 2 of the Code of Civil Procedure, 1908. In order to succeed, NIHPL has to meet the three-pronged tests of “(i) prima facie case, (ii) balance of convenience and (iii) irreparable harm or injury”. The Court must also be mindful that jurisdiction at the pre-arbitration stage is to be exercised only to ensure that an award passed by an Arbitrator should not be rendered in fructuous. In other words, interim order should only be passed in aid of the imminent arbitration proceedings. In order to agree on an extension, the parties have to imperatively arrive at a consensus on mutually agreed terms – i.e., the parties have to be ad idem. Clause 2 cannot be interpreted to mean that NIHPL can compel DIAL to sit at the negotiating table, much less enter into a contract. Parties have an opportunity to extend the lease on mutually agreed terms, but DIAL’s choice to not negotiate an extension is entirely its own business decision, and the court cannot compel it otherwise. DIAL cannot be compelled to enter into a contract, most certainly not by this court, while exercising jurisdiction under Section 9 of the Act. Even if that relief is left for adjudication in arbitration, in the absence of a prima facie right in favor of NIHPL, there is still no justification to be found to grant an interim relief of the nature as sought in the petition. The Court does not find any merit in the present petition and accordingly, the same is dismissed. The pending application also stands disposed of.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 27th August 2021 O.M.P.(I)294 2021 & I.A. 10860 2021 NARANGS INTERNATIONAL HOTELS PRIVATE LIMITED ..... Petitioner Through: Mr. Kapil Sibal & Mr. Akhil Sibal Senior Advocates with Mr. Kshitiz Garg Mr. Anshum Jain and Mr. Rahul Kochal Advocates. DELHI INTERNATIONAL AIRPORT LIMITED ..... Respondent Through: Dr. Abhishek Manu Singhvi Senior Advocate with Mr Anuj Berry Mr. Chaitanya Safaya Mr. Amit Bhandari and Ms. Prerna Acharya Advocates. HON BLE MR. JUSTICE SANJEEV NARULA VIA VIDEO CONFERENCING] SANJEEV NARULA J.has been filed by the Lessee Narangs International Hotels Pvt. Ltd.seeking urgent interim relief against the Lessor Delhi International Airport Limited being aggrieved by DIAL’s email dated 02nd July 2021 asking NIHPL to initiate steps for vacation of DIAL’s premises in view of the expiry of lease on 31st August 2021. O.M.P.(I)294 2021 NIHPL seeks the following urgent reliefs: “[A] Direct that pending the adjudication of the arbitration proceedings between the Parties status quo as on date be maintained by the Parties regarding the flight catering operations of the Petitioner B] Restrain the Respondent from taking any coercive steps to impede the flight catering operations of the Petitioner including discontinuing issuance of necessary permits passes to its personnel vehicles for entry to the Airport premises or taking any steps to oust it from the leased land C] Pass ad interim ex parte orders in terms of the above prayers.” The facts leading to the filing of the present petition as narrated therein are briefly captured below: International Airports Authority of India granted lease of airport land to NIHPL for the “purpose of carrying on flight catering business at the Delhi Airport Palam” for a period of 30 years by way of a Lease Deed dated 20th August 1982 hereinafter referred to as ‘Original Lease Deed’]. Clause 19 of the General Conditions of Contract appended thereto contained an arbitration clause. 3.2. The Delhi Airport Palam Airport was renamed in 1986 as the Indira Gandhi International Airport(COMM.) 294 2021 Agreement dated 04th April 2006 executed between AAI and DIAL in respect of IGI Airport.3.4. The Original Lease Deed also provided “an option of extension upto 10 years” in its recital. Later as recorded in the minutes of meeting dated 27th November 2009 held between NIHPL DIAL and AAI the lease was extended for a further period of 10 yearson the basis whereof the Section 9 petition was withdrawn.1 The said agreement also contained an arbitration clause. 1 Order dated 20th May 2013 passed by a coordinate bench of this court in OMP No. 435 2013. O.M.P.(I)294 2021 In 2016 once again faced with DIAL’s denial of access to the Airport NIHPL approached this court by way of a writ petition which was disposed of by recording statement of DIAL that the Original Lease Deed stands extended till August 2021 and that DIAL would extend the necessary permits and passes for access to the Airport premises.2 In terms of clause 2 of the SLA the parties were to “discuss and mutually finalize the mode terms and conditions of the extension prior to the Term” of the SLA which is ending on 31st August 2021. Accordingly from 2019 onwards NIHPL addressed several letters inviting DIAL to discuss and finalize the extension to which it received no response. In 2021 yet another writ petition was filed by NIHPL in this Court seeking directions to DIAL to negotiate and arrive at an extension of the Original Lease Deed. The Court while adjourning the matter observed that the parties were free to discuss the extension in the 3.10. Thereafter in a meeting of the parties dated 07th May 2021 DIAL offered to enter into a license agreement with NIHPL for one year beyond August 2021 at the same monetary terms as the lease instead of proposing extension of the lease. 3.11. After various communications back and forth during the pendency of the above stated writ petition DIAL asked NIHPL to vacate vide email dated 02nd July 2021. 2 Order dated 28th August 2018 passed by a coordinate bench of this court W.P.(C.) 8768 2016. 3 Order dated 28.04.2021 passed by a coordinate bench of this Court in W.P.(C.) 3957 2021. O.M.P.(I)294 2021 3.12. NIHPL invoked arbitration vide notice dated 06th July 2021 and in view thereof withdrew the writ petition on 13th July 2021. However despite lapse of 30 days from the date of notice no response was received from DIAL. 3.13. Faced with the impending vacation of premises which is just 4 days away from today and aggrieved by DIAC’s lack of proposal for extension of lease for reasons elaborated in the contentions of the parties hereinafter NIHPL has filed the present petition for interim relief pending the formation of the Arbitral Tribunal. 4. Mr. Kapil Sibal and Mr. Akhil Sibal Senior Advocates who appear for NIHPL make the following submissions: 4.1. DIAL has been constantly pressurizing NIHPL to enter into a License Agreement with it notwithstanding the fact that DIAL and NIHPL are signatories to the minutes of meeting dated 27th November 2009 wherein the parties agreed to extend the Original Lease Deed for a period of 10 years and additionally a further extension post August 2021 was also contemplated. 4.2. Despite entering into the Agreement dated 2009 as well as the SLA dated 17th May 2013 with NIHPL DIAL has been taking a dishonest stand that there is no valid lease and hence NIHPL must enter into a license with DIAL on terms divergent from the subsisting lease. In 2016 NIHPL was compelled to approach this court for the second time 8768 2016] on account of DIAL’s withholding of entry of NIHPL’s personnel and vehicles at the Airport. In the court O.M.P.(I)294 2021 the AAI as Respondent No. 2 took the stand that it need not sign the SLA due to the terms of OMDA whereunder all future arrangements shall be entered into between only NIHPL and DIAL. The relevant portions of the orders dated 28th September 2016 and 28th August 2018 in W.P.(C.) 8768 2016 read as under: Order dated 28th September 2016: “Learned counsel for the petitioner contends that the petitioner is a lessee under Lease Agreement dated 20.8.1982 which was a lease for a period of 30 years with the option to the petitioner to have the same extended for a period of further 10 years. It is contended that the said option was exercised and by the Minutes of meeting dated 27.11.2009 the petitioner as also the respondents agreed to the extension of the lease for a further period of 10 years w.e.f. August 2011 to August 2021 on the same terms and conditions as also on the terms and conditions as modified therein. It is contended that subsequently a tripartite supplementary lease dated 17.05.2013 was prepared. However the Airports Authority of India till date has not signed the same though the same has been signed by the petitioner as well as by respondent instructions with regard to the signing of the said document.” Learned counsel for respondent No.2 prays for time to take Order dated 28th August 2018: alia praying as under: The petitioner has filed the present petition inter issuance of appropriate writ order or direction in the nature of mandamus or any other appropriate writ by directing the Respondents to issue to the Petitioner necessary vehicles permits passes ADP NOC permissions etc. for the access of personnel and vehicles at the IGI airport for providing in flight catering services upto 31.03.2017 in accordance with Lease deed dated 20th August 1982 as extended on 27th November 2009 ii)Issuance of appropriate writ order or direction in the nature of mandamus or any other appropriate writ by O.M.P.(I)294 2021 directing the Respondents not to withhold the entry of personnel or vehicles of the Petitioner at the IGI airport for providing in flight catering services in terms of lease deed dated 20th August 1982 as extended on 27th November Mr Tripathi learned Senior Counsel appearing respondent no.1 DIAL concurs with the submission that the lease dated 20.08.1982 stands extended till August 2021 in terms of the Minutes of the Meeting dated 27.11.2009. He further states that in view of the above the DIAL would extend the necessary vehicles permits and passes for granting access to the Airport premises. The learned counsel appearing for the Airport Authority of India also states that a decision has been taken that all arrangements ad agreements in future would be with the DIAL. Further the AAI has no objection to the above. In view of the above the petitioner’s grievance stands addressed. No further orders are required to be passed in this disposed of.” The petition and the pending application are accordingly 4.4. Thus the parties agreed without prejudice to act in terms of the SLA. Clause 2 thereof stipulates that parties will discuss and mutually finalize the mode terms and conditions of the extension prior to the Term for the period post August 2021. The effect scope and enforceability of this extension clause will be the subject matter of arbitration. For now the court can take note of the plain wording of the clause. It contemplates an extension of the existing lease. DIAL has not made any proposal for extension of lease and rather has proposed a license instead which is contrary to the understanding between the parties. 4.5. NIHPL is one of the pioneers of the flight catering business along with Taj and Oberoi carrying out its operations for the last 40 years O.M.P.(I)294 2021 employing thousands of personnel. In these circumstances the subject matter of the arbitration should be preserved at this stage by restraining DIAL from taking any coercive steps to oust NIHPL including denying requisite permissions to NIHPL’s personnel and vehicles for access to the Airport. 4.6. The livelihood of 1500 employees along with their families will be at stake if relief is not granted to NIHPL with immediate effect. 4.7. The balance of convenience lies in favour of NIHPL and irreparable loss and injury would be caused in case an interim relief is not It is not the case of NIHPL that it is claiming a right of automatic extension of the lease. However it is entitled to in terms of Clause 2 of the SLA to seek enforcement of it’s right to call upon DIAL to negotiate the mode terms and conditions of an extension. 4.9. Reliance was also placed on the judgment of the Supreme Court in Hardesh OresLtd. v. Hede & Co. 4 to contend that extension is different from renewal. In the case of renewal a new lease is required while in the case of extension the same lease continues in force for an additional period of time. The extension of lease also does not require any registered document to be executed. 4.10. Reliance was also placed on Section 14(3)(c)(ii) of Specific Relief Act 1963 as it was the prior to the 2018 Amendment to argue that the court can enforce specific performance in a case where the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money terms for non 4 2007 5 SCC 614 at para 29 and 30. O.M.P.(I)294 2021 performance of the contract is not an adequate relief. 5 Dr. Abhishek Manu Singhvi Senior Counsel for DIAL on the other hand strongly contested the present petition by making following 5.1. There is unexplained delay and laches on the part of NIHPL in not approaching the court earlier. On this ground alone the petition deserves to be dismissed. NIHPL knew all alongthat DIAL had an obligation to award a contract by way of tender in terms of Clause 8.5.7 of OMDA. Even then instead of availing judicial remedies it engaged in unnecessary correspondence and has approached this Court at the very last moment. In fact DIAL has not even received the purported notice of invocation dated 06th July 2021. 5.2. The SLA is void and invalid and thus NIHPL has no right to seek extension of the lease. This position has been accepted by NIHPL as evident from the order dated 28th August 2018 passed in W.P. 8768 2016. In terms of OMDA DIAL can only award a sub lease license of the premises to a party selected through a tender process. 5.4. The Clause 2 of the SLA does not give any automatic right of extension in favour of NIHPL. It only obligates the parties to discuss and mutually finalize the mode terms and conditions of the extension prior to the Term. Therefore no mandatory injunction can be granted 5 This contention made orally during the hearing does not form part of the written submission filed by O.M.P.(I)294 2021 at the interim stage to extend a lease expiring on 31st August 2021. Reliance is placed upon Indian Hotels Company Ltd. v. NDMC.6 5.5. DIAL is the best judge of its business operations. It is for DIAL to choose the number of sub contractors it should have at the IGI 5.6. DIAL in good faith and without prejudice to its rights made an ad hoc offer for a license to NIHPL which was expressly rejected. Multiple correspondences between the parties would show that NIHPL was unagreeable to enter into a fresh license for a period one year post the expiry of the present lease. The offer given by DIAL was expressly rejected by NIHPL who sought “a fair and reasonable proposal for the extension of the lease.” NIHPL wanted only an offer that suited itself which is against the basic tenets of mutual discussion and thus today this offer cannot be foisted upon DIAL as it lapsed as far back as on 02nd July 2021. In terms of Section 14(d) of the Specific Relief Act 1963 a determinable contract cannot be specifically enforced and therefore an interim injunction cannot be granted. Reliance is placed upon Royal Orchid Associated Hotels Private Limited v. Kesho Lal 5.8. There is a bar to arbitration under the Public Premises Act 1971. Clause 19 of the General Conditions of Contract appended to the Original Lease Deed specifically excludes disputes which fall within the purview of the 6 2016 SCC OnLine Del 5733. 7 2020 SCC OnLine Del 1708. O.M.P.(I)294 2021 said Act. Therefore the occupation of the subject premises by NIHPL post 31st August 2021 can only be decided under the Public Premises Act and hence the issues sought to be urged by NIHPL are not arbitrable. Relevant extract of Clause 19 of the General Conditions of Contract appended to the Original Lease Deed is extracted below: “19. All disputes and differences arising out of or in any way touching or concerning this agreement Act and the rules framed thereunder which are now in force or which may hereafter come into force are applicable shall be referred to the sole arbitrationprima facie case balance of convenience andirreparable harm or injury. The Court must also be mindful that jurisdiction at the pre arbitration stage is to be exercised only to ensure that an award passed by an Arbitrator should not be rendered infructuous. In other words interim order should only be passed in aid of the imminent arbitration proceedings. Although NIHPL is correct in saying that the scope effect and enforceability of the extension clause will be the subject matter of arbitration yet NIHPL has to certainly satisfy and establish a prima facie O.M.P.(I)294 2021 case and manifest the necessary ingredients enumerated above for grant of interim relief. To determine this the court has to examine the contractual obligations flowing from the agreements in question. Firstly DAIL has contended that the SLA is not a valid document and thus DIAL is not governed by the terms stipulated thereunder. In the opinion of the Court adjudication on this issue would require appreciation of evidence which however would only be feasible in arbitration. For now taking a prima facie view based on the stand taken by DIAL before a coordinate bench of this court in the order dated 28th August 2018 in W.P.(C.) 8768 2016 the court finds the SLA to be subsisting and thus governing the relationship between the parties. It is also undisputed that the arrangement recorded thereunder grants NIHPL the right to occupy the premises at IGI Airport till 31st August 2021. That said the next question that falls for consideration is the enforceability of NIHPL’s right under the terms of the SLA. For that let’s straightaway go to the SLA relevant clauses whereof are extracted SUPPLEMENTARY LEASE DEED “ As per the Original Lease Deed dated 20th August 1982 NIHPL had an option to renew the lease for a further period of 10years from 31 August 2011 till 31st August 2021 and the same option has been exercised by NIHPL. The Parties agreed and decided amongst other things in the Joint O.M.P.(I)294 2021 Meeting held on 27 November 2009 at New Delhi to renew and extend the lease of the premises for a further period of 10years effective from 31 August 2011 on the same terms and conditions as the Original Lease Deed save and except a Royalty(as defined hereinafter) of 13%of the Gross Turnover. The MOU dated 27.11.2009 is annexed as Schedule In view of the above it has been agreed between the Parties to execute this Supplementary Lease Deed to the Original Lease Deed in writing thereby extending the terms of the original lease deed by another 10 ten) years from 01 September 2011 to 31 August 2021 on the same terms and conditions as contained in the Original Lease Deed except as stated therein. NOW THEREFORE IN CONSIDERATION OF THE PROVISIONS AND MUTUAL COVENANTS CONTAINED HEREIN IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 2. The parties hereby extend the term of the Original Lease Deed for the period of 10years from 01 September 2011 to 31 August 2021(“Term”). For the period post 31 August 2021 the parties will discuss and mutually finalize the mode terms and conditions of the extension prior to the Term or such extended period agreed to between DIAL and NIHPL. 14. 14. This Deed shall expire automatically after the expiry of the Term unless terminated as provided in this Deed. termination and prior determination of the Term of this Deed shall be governed by the provision of the Original Lease Deed and this Deed. Without prejudice to AAI and or DIAL’s right to repossess the Leased Premises along with any building and structures thereon all other rights remedies and legal action if any on expiry termination or sooner determination of the Lease if NIHPL fails to hand over peaceful vacant possession of the Leased Premises then DIAL shall be entitled to not refund the Security Deposit till the Leased Premises is handed over to DIAL. DIAL shall charge the Rent along with simple interest at the rate of 18% per annum thereon till such time NIHPL handovers to DIAL the Leased Premises.” termination consequences of expiry emphasis supplied] O.M.P.(I)294 2021 10. Great emphasis has been laid by Mr. Sibal on Clause 2to contend that DIAL is contractually bound to necessarily come forward to join NIHPL on the negotiating table. The court is however unable to read any such enforceable right in favour of NIHPL in the manner of interpretation of clause 2 that is being urged by it. The aforenoted clause clearly defines the expiry of the term of the lease as 31st August 2021. It only envisages an option available to the parties to discuss the possibility of an extension prior to the termination of the period of the lease. While it undoubtedly also provisions for an extension in the future but that is with a caveat in case the parties may so desire upon mutual discussions. The court cannot read that as an absolute automatic or vested right of extension being carved out in favour of NIHPL. In order to agree on an extension the parties have to imperatively arrive at a consensus on mutually agreed terms i.e. the parties have to be ad idem. Clause 2 cannot be interpreted to mean that NIHPL can compel DIAL to sit at the negotiating table much less enter into a contract. Parties have an opportunity to extend the lease on mutually agreed terms but DIAL’s choice to not negotiate an extension is entirely its own business decision and the court cannot compel it otherwise. A binding agreement can only come about if the earlier agreement is renewed on mutually agreed terms in the absence whereof the term of SLA is bound to terminate on the stipulated date. In fact Mr. Sibal has categorically stated that he is not claiming an automatic right of extension. He has painstakingly taken the court through the documents on record to demonstrate that the conduct of DIAL has been dishonest and that they have not come forward to negotiate the terms of O.M.P.(I)294 2021 extension of the lease. He has relied upon the email dated 13th May 2021 to argue that DIAL has instead offered to allow NIHPL to continue in the premises subject to the execution of a year long license agreement. During the course of the arguments a specific query was put to Dr. Singhvi as to whether the offer made by DIAL in the aforenoted email was still open i.e. whether DIAL was still desirous of entering into a fresh Licence Agreement with NIHPL. In response thereto Dr. Singhvi took the Court through several correspondences between the parties subsequent the aforenoted communication and stated that the offer stood lapsed as far back as 2nd July 2021 in terms of the conduct of and laches on part of NIHPL. 12. These communications being an accurate account of the events that transpired give us an insight into NIHPL’s stand regarding DIAL’s offer of entering into a fresh Licence Agreement. It would thus be apposite to refer to the email dated 14th May 2021 which is the first response of NIHPL to the offer noted above. The same is extracted herein below: “From: Ambassador’s Sky Chef <dfk@ambassadorindia.com> Sent: 14 May 2021 19:12 To: ‘Sanjiv Edward’ <Sanjiv.Edward@gmrgroup.in> CC: ‘Ashish Batra’ <Ashish.Batra@gmrgroup.in> ‘Beena Patwal’ Subject: RE: Your email dated 26.04.2021 regarding lease deed dated 20.08.1982 and MoU dated 27.11.2009 and order dated 28.08.2018 passed by the Hon’ble High Court Dear Sanjeev Thank you for email dated 13th May 2021 along with the attached minutes of the discussions we had via Zoom last Friday. At the outset I would like to bring to your notice that during our discussions last Friday I had clearly explained to you and your team that our subsisting Lease Deed dated 17th May 2013 has a specific clausefor extension of the existing lease post 31st August 2021. The said clause provides for the Parties to discuss and mutually finalise the mode terms and conditions of the extension of the lease. In view of this clause I had O.M.P.(I)294 2021 explained that Ambassador Sky Chef stood on a entirely different footing as compared to the other flight catering units at Delhi and any tender that you may come up with for appointment of new flight kitchen concessionaire would not be applicable to us. As such the only thing that remains is for us to discuss and mutually finalise fair and reasonable terms for the extension of our existing lease. In addition please note that Clause 2 of the Lease Deed dated 17th May 2013 provides for an “extension” of the subsisting lease and hence there is no question of having it converted into a license. Thus DIAL is contractually obligated to extend the lease and not convert it into a License. As stated during our meeting on 07th May 2021 and in my email dated 11th May 2021 in the present scenario even the most optimistic projections do not envisage a revival of domestic or international traffic of at least another 4 5 years. Given the losses we have suffered and continue to suffer since the outbreak of the Corona virus pandemic along with the difficulties faced in collecting our old outstanding dues including the GST Revenue Share paid to DIAL TDS etc. all paid by us from our own pocket a complete revival of the business is necessary which would require a considerable period of time. This will not be possible with a shorter term lease as on the one hand we have to invest substantial sums into the upgradation of the existing flight catering unit to prevent the spread of COVID as also ensure compliance with enhanced hygiene standards and on the other all airlines insist on a minimum 5 year residual land lease period before renewing or entering into fresh catering contracts. In view of the above and also considering the stiff competition that we will face from new airports opening in the vicinity including the Jewar airport your proposal for a one year extension is neither commercially feasible or nor financially viable and is contrary to the spirit of the long and cordial relationship that we enjoy. We again request you to reconsider your proposal and let us have you offer for extension of the lease for a much longer period and on far more favourable terms and conditions than the present terms considering the financial crisis that our business is facing and is likely to continue to face in the near future. Best Regards Murali Krishnan” 13. The above email reveals that NIHPL has been looking for an offer that suits them on their terms. Subsequent email communications also narrate the same story. The relevant part of a few of such communications are extracted herein below: O.M.P.(I)294 2021 i) Email dated 21st May 2021: “From: Ambassador’s Sky Chef <dfk@ambassadorindia.com> Sent: 21 May 2021 15:17 To: ‘Sanjiv Edward’ <Sanjiv.Edward@gmrgroup.in> CC: ‘Ashish Batra’ <Ashish.Batra@gmrgroup.in> ‘Beena Patwal’ Subject: RE: Your email dated 26.04.2021 regarding lease deed dated 20.08.1982 and MoU dated 27.11.2009 and order dated 28.08.2018 passed by the Hon’ble High Court Dear Sanjiv This is further to my trailing email dated 14th May 2021. As explained in my email clause 2 of the Supplementary Lease Deed dated 17th May 2013 requires us to discuss and mutually finalise the mode terms and conditions of the extension of our subsisting lease for the period post 31st August 2021 prior to the expiry of the terms of the subsisting lease i.e. on 31st August 2021. As you are aware we have been continuously requesting for a meeting to discuss and conclude the terms of the extension since last over 2.5 years. In view of the prevailing circumstances as explained in my various communications to you including my email dated 14th May 2021 we await your fair and reasonable proposal for such extension. Considering the paucity of time and the urgency of the matter we again request you to kindly send us your revised proposal at the earliest so that the terms and conditions for the extension of the lease can be agreed and finalized sufficiently prior to the expiry of the existing lease on 31st August Thanking you. Best Regards Murali Krishnan” ii) Email dated 28th May 2021: “To: ‘Sanjiv Edward’ <Sanjiv.Edward@gmrgroup.in> Cc: ‘Ashish Batra’ <Ashish.Batra@gmrgroup.in> ‘Beena Patwal’ Subject: RE: Your email dated 26.04.2021 regarding lease deed dated 20.08.1982 and MoU dated 27.11.2009 and order dated 28.08.2018 passed by the Hon’ble High Court Dear Sanjiv At the outset we state that we have not made any insinuations which are contrary to the factual and legal position and deny all contentions and O.M.P.(I)294 2021 allegations made by you which are contrary to or inconsistent with what has been stated by us in regard to the subject matter. We reiterate that in terms of Clause 2 of the Supplementary Lease Deed dated 17th May 2013 we are entitled to an extension of our subsisting lease of the period post 31st August 202 1 prior to the expiry of the term of the existing lease i.e. 31st August 2021. The extension clause thus provides for extending the subsisting lease on fair and reasonable terms and not conversion of the lease into a license. We are not opposed to your issuing a competitive tender for appointing a new IFK concessionaire at the IGI Airport. However the issuance of such tender and appointment of a new IFK concessionaire at the IGI Airport has no relation to or bearing on the extension of our subsisting lease. In view of what is stated above and in our earliest emails we again request you to send us your fair and reasonable proposal for the extension of the subsisting lease post 31st August 2021. Considering the paucity of time and urgency of the matter we request for your immediate action on the same. Thanking you. Best Regards Murali Krishnan Vice President” iii) Email dated 7th June 2021: “From: Ambassador s Sky ChefSent: Monday June 7 2021 5:03 PM To: Sanjiv Edward CC: Ashish Batra Beena Patwal Subject: RE: Your email dated 26.04.2021 regarding lease deed dated 20.08.1982 and MoU dated 27.11.2009 and order dated 28.08.2018 passed by the Hon ble High Court Dear Sanjiv Further to our trailing email dated 28th. May 2021 considering the urgency of the matter and the paucity of time available we request you to kindly send your fair and reasonable proposal for extension of the subsisting Supplementary Lease Deed dated 17th. May 2013 for the period post 31st.August 2021 at your earliest. Best Regards Murali Krishnan Vice President” iv) Email dated 15th June 2021: O.M.P.(I)294 2021 “From: Ambassador’s Sky Chef <dfk@ambassadorindia.com> Sent: 15 June 2021 16:00 To:‘Sanjiv.Edward@gmrgroup.in’ <Sanjiv.Edward@gmrgroup.in> CC: ‘Ashish.Batra@gmrgroup.in’ <Ashish.Batra@gmrgroup.in> ‘Beena.Patwal@gmrgroup.in’ <Beena.Patwal@gmrgroup.in> Subject: RE: Your email dated 26.04.2021 regarding lease deed dated 20.08.1982 and MoU dated 27.11.2009 and order dated 28.08.2018 passed by the Hon’ble High Court Dear Sanjiv Thank you for your email dated 10th June 2021. We note with regret and disappointment your refusal to comply with your obligations under the Supplementary Lease Deed dated 17th May 2013 and particularly Clause 2 thereof. We reiterate that the offer made by you pursuant to the discussions held on 7th May 2021 is neither fair nor reasonable and is not in compliance with your obligations under the Supplementary Lease Deed. As stated earlier Clause 2 of the Supplementary Lease Deed specifically requires us to discuss and mutually finalise the mode terms and conditions of the extension of our subsisting lease for the period post 31st August 2021 prior to the expiry of the subsisting lease on 31st August 2021. DIAL is therefore contractually obligated to extend the existing lease and not convert it into a license as proposed by you. As mentioned in our earlier emails it will take at least another 4 to 5 years for revival of domestic and international air passenger traffic and consequently the flight catering business which has suffered and continues to suffer heavily on account of the outbreak and spread of the coronavirus pandemic. A short term lease or a one year license as proposed by you is the present circumstances given the long time period that will be required to recoup the losses incurred over the last one and half years of the pandemic as well as the investments made to upgrade the hygiene and food safety standards of the flight catering unit to prevent the spread of Covid pandemic. In addition you are aware that all airline catering contracts are for a period 3 5 years and that they insist on a minimum five year residual land lease before renewing or entering into fresh catering contracts. Although DIAL is a signatory to OMDA it has subsequently executed the Supplementary Lease Deed dated 14th May 2014 with Narangs International Pvt. Ltd. The said Supplementary Lease Deed contains an extension clause i.e. Clause 2 as per which DIAL is obligated to extend the aforesaid Lease Deed by way of a fresh lease on fair and reasonable terms prior to 31st August 2021. To the best of our knowledge OMDA does not bar or prohibit DIAL from extending existing leases and ensuring the continued performance of its obligations. We reiterate that the provisions of Clause 2 of the Supplementary Lease fair and reasonable or commercially viable O.M.P.(I)294 2021 Deed dated 17th May 2013 not only confers a right in our favour to seek an extension of the subsisting lease but also casts an obligation on DIAL to extend the existing lease on fair and reasonable terms prior to 31st. August We are unable to understand your statement in the last para of your aforesaid email “so that further action can be taken at the earliest for the continuity of services to the Airlines” and request you to clarify the same. We once again request you to reconsider your earlier proposal and send us a fair and reasonable proposal for the extension of the lease to enable us to conclude the matter at the earliest prior to 31st. August 2021 as required under the terms of the Supplementary Lease Deed. Thanking you Yours sincerely Best Regards Murali Krishnan Vice President” 14. The above quoted mails establish that although NIHPL sought extension of the lease for a prolonged time it was not agreeable to a license agreement. This stance of NIHPL is certainly against the tenets of mutual discussion. The terms offered by DIAL were not acceptable to it and were rejected on the basis of its commercial wisdom. It insisted on a lease agreement which DIAL refused to countenance by citing restrictive provisions of the OMDA. DIAL’s stand has been explicit yet NIHPL continued to flog the proverbial dead horse by engage back and forth with its correspondence. The mutual negotiation thus failed much earlier in time yet NIHPL preened itself to be hopeful and did not relent. Now when the realisation has dawned on it that the term of the lease is going to expire in 4 days it has spurred into action at a much belated stage. 15. Mr. Sibal had argued that the terms of the proposed license agreement are not at variance with the lease and thus the court may direct that the parties can without prejudice to their rights and contentions continue under O.M.P.(I)294 2021 license subject to final adjudication of the claim before the Arbitral Tribunal. This prayer appears to be appealing but unfortunately it is without any contractual foundation. The date of expiry of the agreement has been set. Adherence to contracted terms is the prime factor in any contractual relationship. DIAL cannot be compelled to enter into a contract most certainly not by this court while exercising jurisdiction under Section 9 of the Act. Even if that relief is left for adjudication in arbitration in the absence of a prima facie right in favour of NIHPL there is still no justification to be found to grant an interim relief of the nature as sought in the petition. The terms of the SLA have to spell out some enforceable right in favour of NIHPL and a corresponding obligation on DIAL for NIHPL to be entitled to the relief of injunction. Just because disputes have arisen and that would require adjudication by the Arbitral Tribunal does not necessarily invite an interim order. 16. The terms of the SLA do not create a vested right in favour of NIHPL. The terms of the SLA could only have been relied upon for initiating a negotiation. That cannot however mean that DIAL has to be compelled to choose its vendors. Negotiation as noted above has been in vain for the last two years as it manifests from the correspondence placed on record. The court also finds merit in the contention of DIAL that it is the best judge of the business operations it seeks to conduct at the IGI Airport and it is for DIAL to choose how many sub contractors it should have at the Airport. Therefore in the opinion of the Court NIHPL has not made out any outline of a prima facie case balance of convenience or irreparable loss in its O.M.P.(I)294 2021 17. Section 14 of the Specific Relief Act 1963 as substituted vide its 2018 Amendment enumerates contracts which cannot be specifically enforced. One such category of contracts given in Sub section is a contract which by its very nature is determinable. This court in its prima facie opinion finds the present lease being of a specified term to be determinable in nature. This is also evident from clause 5 of the Original Lease Deed which reads as under: In the event of any default failure negligence or breach in the opinion of the Authority on the part of the Lessee in complying with all or any of the condition mutually agreed between the parties the Authority shall be entitled and be at liberty to determine the lease forthwith and resume possession of the premises wherever provided without payment of any compensation or damages and also forfeit in full or in part the amount deposited by the Lessee for the due performance of the agreement.” sic)18. Futher as NIHPL has failed to establish a case for grant of interim relief no need is felt to examine and determine the question of arbitrability of disputes in the context of bar under the Public Premises Act. 19. Even under the Specific Relief Act 1963 the contentions of NIHPL are not merited. As the contract is determinable it cannot be specifically enforced thus the nature of injunction sought by NIHPL for restraining its ouster from the premises cannot be granted under Section 41(e) of the Specific Relief Act 1963. NIHPL cannot claim injunction in the nature of specific performance once the agreement has expired by efflux of time. 20. Before parting the court must also record that NIHPL has been in O.M.P.(I)294 2021 occupation of the premises for a long period of four decades. Its status under the Original Lease Deed as well as the SLA acquired upon gaining entry to the premises is at the highest that of a ‘tenant’. Thus there is no right in favour of NIHPL to occupy the premises or continue as a lessee in perpetuity. The right to seek extension has to be construed consistent to and in accordance with the covenants of the lease deed which requires DIAL’s consent. In this regard there is no ambiguity. DAIL’s refusal to extend the lease licence on the ground that it has an obligation to award contract by way of tender in terms of Clause 8.5.7 of OMDA cannot be called unfair or arbitrary even if one applies that yardstick which is although not strictly applicable in commercial matters. DIAL’s insistence on adhering to the conditions of OMDA must also not be brushed aside lightly. Resorting to public auction is indeed universally recognized as the most apposite method that subserves public interest promotes transparency public participation fair price maximization of revenue and promotes fair competition. Thus on aspect as well the Court does not find any right to have accrued in favour of In view of the foregoing the Court does not find any merit in the present petition and accordingly the same is dismissed. The pending application also stands disposed of. AUGUST 27 2021 SANJEEV NARULA J O.M.P.(I)294 2021

To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it: Tripura High Court

Where it is wrong to agree to marry and where the manufacturer does not want to keep the promise itself, but rather to mislead the woman to get her to enter into sexual intercourse, a misconception arises that the woman’s consent is vitiated. On the other hand, it cannot be said that a violation of a contract is a mistaken premise. The man making the vow should not have intended to keep his word when he gave it to create a false promise. The judgement was passed by the High Court of Tripura in the case of Jayanta Chakraborty v. The State of Tripura [Crl. Petn. No.11/2020] by Single Bench consisting of Hon’ble Justice MR. Akil Kureshi. The facts of the case are that the petitioner is a Senior Manager of ONGC Tripura Power Corporation Limited. The complainant was also an employee of the said Corporation but at a much junior level. She lodged the said FIR against the petitioner of offences punishable under Sections 376, 419 and 354A(3) of the Indian Penal Code (IPC). Learned counsel for the petitioner, vehemently contended that neither in the FIR nor during investigation any offence is made out against the petitioner. Even if all averments made in the complaint are taken at the face value, no offence can be stated to have been committed by the petitioner. Learned counsel for the respondent submitted that the charge sheet having already been filed, the petitioner should be allowed to file a discharge application before the concerned Court which can examine the material on record more minutely and come to a proper conclusion. While relying on the apex court in the case of Pramod Suryabhan Pawar vs. the State of Maharashtra and Anr, wherein, it was held that “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a misconception of the fact that vitiates the woman’s consent. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The consent of a woman under Section 375 is vitiated on the ground of a misconception of fact where such misconception was the basis for her choosing to engage in the said act.”

HIGH COURT OF TRIPURA Crl. Petn. No.11 2020 Sri Jayanta Chakraborty S O. Sri Jogesh Ch. Chakraborty Resident of flat C 3 Mayangan Apartment 2nd Floor 3 1 B.G. Ghosh Sarani Bhadra Kali Hooghli West Bengal Pin 712232 P.S. Uttar Para C O OTPC ONGC Tripura Power Ltd. Palatana Gomati District. Present address Gouri Hotel Udaipur Central Road Udaipur Town P.S. R K Pur Dist. Gomati Tripura. ..…Petitioner(s) Versus 1. The State Of Tripura 2. Miss Ekata Deb D O. Sri Ankush Deb of Agartala Joynagar Road No. 6 P.S. West Tripura. Present Address Association of Social Health in India Mangalalok Nari Niketan Swadhar Greh Jagatpur Kali Bari Road Indranagar Agartala P.S. East Agartala Dist. West Tripura. ..…Respondent(s) : Mr. S. Sarkar Advocate. For Petitioner(s) For Respondent No.1 For Respondent No.2 : Ms. R. Purkayastha Advocate. : Mr. Sumit Debnath Addl. P.P. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment : 05.02.2021. Whether fit for reporting : No. JUDGMENT & ORDERPetitioner original accused has prayed for quashing of an FIR dated 12th April 2019 lodged by the respondent No.2 herein before Superintendent of Police Gomati as well as the charge sheet filed by the police upon completion of investigation pursuant to the said FIR. Brief facts are that the petitioner is a Senior Manager of ONGC Tripura Power Corporation Limited „OTPCL‟ for short). The complainant was also an employee of the said Corporation but at a much junior level. She lodged the said FIR against the petitioner in which she had made following allegations: She admitted that there are photographs where she and the accused are seen together in some of which the wife of the accused and other family members are also there. She stated that she and the accused were spending conjugal relationship with each other and spending time together and behaving like a married couple since September 2015 till recently. All the employees of OTPCL also knew about their relationship. During the entire period from September 2015 till 6th April 2019 she and the accused were spending time together as a married couple however the accused being already married and having a son her position was like a mistress. She also knew that the accused was not going to leave his family and accept her as his wife. She had accepted the said position because the accused had spent close to 20 lakhs of rupees for her higher studies for her psychological therapies and also for her business. She continued to bear her own living expenses herself. Sometimes the accused would help her in these matters also. She further stated that the accused was living with his wife son and parents. She desired to meet his parents and that the accused should disclose to them about their relationship. Except his family members everyone else knew about the relationship and that they were living together out of free will “with no false promises to be taken by him for marrying me”. According to her she was informed by the accused that his wife was mentally sick had no money and therefore would not be able to take care of herself if divorced. Even considering his son‟s life he would not divorce his wife. On 4th April 2019 she asked the accused to take her to his house to meet his parents and wife and son and to disclose them about their relationship which he refused. She ultimately approached a police station where upon the accused and his father came to the police station and abused her. After this incident the accused has stopped communicating with her and has blocked her communications. This is the gist of the complaint filed by the respondent No.2. The police carried out the investigation and filed a charge sheet in which the petitioner has been charged with commission of offences punishable under Sections 376 419 and 354A(3) of Indian Penal Codeof IPC. We would refer to all these provisions a short while later. Counsel for the complainant has referred to the offence of bigamy punishable under Section 494 of IPC. We would examine this provision also. For the present we may recall the complainant in the complaint had candidly stated that she had built very intimate relationship with the accused out of her free will. She specifically stated that no false promise of marriage was made by the accused. She has also narrated that continuously for close to 4 years she and the accused lived like husband and wife. This FIR thus does not indicate a slightest ground for contending that the consent given to the accused for physical relationship was not a free consent. She has not alleged either misconception of fact on her part or any misrepresentation on part of the accused which led her to giving the consent. To reiterate in the FIR she was specific that she was aware about the marital status of the accused and that she willingly agreed to a relationship with him. In fact she has stated that the accused made it clear to her that under his circumstances he would not divorce his wife. She has not alleged that the accused being in a supervisory position or in a controlling position in the establishment where both of them were employed he exploited her through his superior position and extracted physical relationship against her will. She admitted that the accused had financially supported her by spending large amounts for her higher education and treatments. The statement under Section 161 of Cr.P.C. recorded by the police would not change this position. She has made a few modifications in her version in this statement as compared to the FIR. However there is nothing on the record to suggest that whatever relationship she and accused had built up internally was not out of free volition on either side. Section 376 of IPC is simply not applicable. In this context we may refer to the decision of Supreme Court in case of Pramod Suryabhan Pawar versus State of Maharashtra and another reported in9 SCC 608 in which in the context of false promise of marriage for establishing physical relationship with a woman and the question of consent as referred to in Section 375 of IPC the Supreme Court after referring to large number of decisions on the point observed as under: “16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations there is a “misconception of fact” that vitiates the woman‟s “consent”. On the other hand a breach of a promise cannot be said to be a false promise. To establish a false promise the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act…. 18. To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman‟s decision to engage in the sexual act. 19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused but on the promise of marriage he established sexual relations. However the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as 19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004. 19.2. The complainant and the appellant met regularly travelled great distances to meet each other resided in each other‟s houses on multiple occasions engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was 19.3. The appellant expressed his reservations about marrying the complainant on 31 1 2014. This led to arguments between them. Despite this the appellant and the complainant continued to engage in sexual intercourse until March 2015. 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant it was done in bad faith or with the intention to deceive her. The appellant‟s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008 and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant‟s promise of marriage. Therefore even if the facts set out in the complainant‟s statements are accepted in totality no offence under Section 375 IPC has occurred.” 10. Section 419 of IPC which is another provision police has included in the charge sheet provides of punishment for cheating by personation. Offence of cheating is defined in Section 415 of IPC and can be stated to have been committed by a person who by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body mind reputation or property. Section 416 defines the offence of cheating by personation and provides that a person is said to “cheat by personation” if he cheats by pretending to be some other person or by knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person really 11. Ex facie there are no allegations of cheating by personation. Nowhere has the complainant either in the FIR or even in her statement recorded by the police ever alleged that the accused personated himself as some other person and influenced by such personation she give consent for physical relationship. I am prepared to go a step beyond and examine whether the offence of cheating with or without personation can be said to have been made out. Here also the answer has to be in the negative. As noted under Section 415 of IPC a person can be said to have committed the offence of cheating if he has deceived a person fraudulently or dishonestly into inducing such a person to do or not to do certain act which the person otherwise would not have done or omitted. In the present case there are no allegations of deception by the accused fraudulently or dishonestly. 12. Section 354A of IPC refers to Sexual harassment and punishment for such sexual harassment. Sub Section of Section 354A defines the offence of sexual harassment. A man who commits any of the acts referred to in clauses to of sub Section shall be guilty of offence of sexual harassment and these clauses arephysical contact and advances involving unwelcome and explicit sexual overtures a demand or request for sexual favours showing pornography against the will of a woman and making sexually coloured remarks. Sub Section of Section 354 A provides for punishment for the offence specified in clause iv) of sub Sectionnamely making sexually coloured remarks. I have not seen any indication in either FIR or any of the papers accompanying the charge sheet to include the said offence. 13. There was an attempt on part of the counsel for the complainant to bring the case within the definition of bigamy. Offence of bigamy is made punishable under Section 494 of IPC which provides that whoever having a husband or wife living marries in any case in which such marriage is void by a reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years. 14. There is no allegation in the complaint that the accused had married the complainant. Offence of bigamy under Section 494 of IPC can be said to have been made out only when a person with a spouse living and subsisting marriage marries another person. Under Section 198 of Cr.P.C. a complaint for bigamy can be made only by a person aggrieved. Even if the case of the complainant was that she and the accused had performed a ceremony of marriage since she herself was aware about the subsisting marriage of the accused with his wife it is hugely doubtful whether she can be said to be the person aggrieved. 15. Under the circumstances impugned FIR dated 14.05.2019 and the charge sheet filed by the police on the basis of such an FIR are quashed. Petition is allowed. Pending application(s) if any stands disposed of. CJ sima